Dr B.R. Ambedkar feared that election commissioners might come under "the thumb of the executive", these fears have never been more real than now, writes S.N. Sahu.
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ON March 17, 2024 while addressing the media concerning the announcement of schedules for general elections, the Chief Election Commissioner (CEC) Rajiv Kumar said that the Election Commission of India has always been in favour of transparency, but there is a need to ensure that donors' privacy is protected.
His utterances that donor's privacy should be shielded runs contrary to the Supreme Court's February 15 landmark judgment that that details of funds received by political parties from donors should be put in the public domain to ensure the conduct of free and fair elections and enable voters to make informed choices while casting their votes.
What the CEC said does not fall within the scope of the mandate of his office. Tragically, it is in conformity with the Modi regime's stand in the Supreme Court that donor privacy supersedes the right of voters to know about the details of funds received by political parties.
The Supreme Court rejected that argument and declared the electoral bonds scheme unconstitutional on the ground that it violated the fundamental right to information and vitiated free and fair election which is the basic structure of the Constitution.
The stand of the CEC in favour of donor privacy by toeing the line of the Union government amounts to compromising the independence and impartiality of his office. This is indeed a very grave matter with adverse consequences for the conduct of general elections on the basis of the ideals of fairness.
The CEC's out-of-line comments raise very troubling points. The ECI, by pleading for donors' privacy, creates an impression in the minds of the citizenry that it is acting as an arm of the government.
That statement of the ECI aligning the ECI with the Union government proves the apprehension of Dr B.R. Ambedkar who on May 16, 1949, while responding to the debates in the Constituent Assembly on the draft Article 289 (now Article 324) dealing with the establishment of an independent election commission had said that election commissioners might come under "the thumb of the executive".
“The ECI, by pleading for donors' privacy, creates an impression in the minds of the citizenry that it is acting as an arm of the government.
He had explained that the creation of an independent ECI by constitutionally ordained provision was not accompanied by another provision preventing the government of the day from appointing a fool or an unworthy person who would be subservient to the government responsible for appointing him or her.
Ambedkar's fears that election commissioners might come under "the thumb of the executive" have come true.
Those who refused to come under "the thumb of the executive" have resigned as election commissioners or left the ECI during the last ten years. A clear example is that of Ashok Lavasa who was appointed as an election commissioner in 2018 and gave dissenting notes on the issue of the commission's decision to give a clean chit to Prime Minister Narendra Modi on the charges of violation of Model Code of Conduct in 2019 when he was campaigning during the general elections.
Lavasha's family faced investigations from the income tax department and he himself left the Election Commission of India in 2020 to take the responsibilities of Vice-President of the Asian Development Bank, a post normally filled with government support. S.Y. Quraishi, former election commissioner, famously said that he was hounded out of the ECI.
Arun Goel, who was appointed as election commissioner on November 22, 2022 tendered his resignation on March 9, 2024 just eight days before the dates for general elections were announced.
In the normal course, he would have become the CEC as he could have continued in that high office till 2027.
Lavasha and Goel quitting the ECI in a span of four years, that too during the tenure of Modi as Prime Minister raise several questions about the impartial functioning of the ECI. Such concerns expressed in several quarters do not augur well for our democracy.
Let us juxtapose Ambedkar's utterances made in the Constituent Assembly in 1949 that election commissioners might come under "the thumb of the executive" with the Supreme Court's observation in its judgment in 2023 in Anoop Baranwal versus Union of India that an independent person as election commissioner would not be "servile to the powerful".
“S.Y. Quraishi, former election commissioner, famously said that he was hounded out of the ECI.
The statement of the present ECI Rajiv Kumar echoing the Union government's stand in defence of the anonymity of donors' identities underlines both Ambedkar's and the Supreme Court's fears regarding the independence of ECI.
The Order of the Supreme Court in Anoop Baranwal versus Union of India prescribing a committee consisting of the Prime Minister, Chief Justice of India (CJI) and leader of the Opposition in Lok Sabha for recommending to the President of India to appoint election commissioners and ECI has been altered by the Modi regime by a law removing the CJI and putting in that place a Union minister nominated by the Prime Minister.
It clearly indicated that the selection of election commissioners and the CEC would remain under the complete control of the Union government of the day because the majority consisting of the Prime Minister and his\her nominee, a Union minister, would overrule the leader of the Opposition.
“Lavasha and Goel quitting the ECI in a span of four years, that too during the tenure of Modi as Prime Minister raise several questions about the impartial functioning of the ECI.
The apprehensions of Ambedkar and the concerns expressed by the Supreme Court that the ECI should not be servile to the powerful sadly persist at a time when India has been described as an elected autocracy, a partially free country and worries have been expressed regarding the independence of the ECI.
The legislative intent of the Constituent Assembly that the ECI must not be subordinated to the executive or any other entity needs to be upheld to uphold the cause of free and fair elections which are integral to the basic structure of the Constitution.