ON 25th September Indian express devastatingly exposed the compromised functioning of Chief Election Commissioner, Gyanesh Kumar in operating SIR across the country leading to disenfranchisement of 13 crores of voters in 20 States. It unmasked that two Election Commissioners objected on record to poll panel’s steps 14 times in ten months. Such flaggrantly flawed operation of SIR has outraged opposition parties and people, specially the youth, and CEC Kumar has been charged with treason and for acting in a highly partisan manner to put BJP in a vantage position for winning elections. Youth has hit the roads and streets from Mumbai to New Delhi to protest and demand Gyanesh Kumar’s resignation for adopting the egregious method of centralising the process of the addition and deletion of voters from the electoral rolls of States and depriving the Electoral Registration Officers of those States legally mandated to perform their duties to add and remove voters from the voters’ list. More importantly his unilateral, illegal and unauthorised manner of asking the first time voters that they should while filling up Form 6 to register as voters must mention, from 2002 electoral roll, the names of their parents and grandparents has angered one and all. It is worth noting that no CEC can alter Form 6 in such a whimsical manner as it is the Government alone which has the power to modify that form. Similarly Gyanesh Kumar has not involved two other Election Commissioners, Sukhbir Sandhu and Viveak Josi, in several decisions taken to implement SIR and those two Commissioners have expressed their disapproval in file that they were not in loop for taking decisions and carrying out operational details for implementing SIR. They flagged the point that more than 16 lakh appeals were filed from Election Commission of India to delete those voters in West Bengal who have been added after the judicial tribunals disposed of their petitions in their favour for restoring their names in the voters’ list of the State. Their repeated questions as to who filed those appeals against duly selected voters remain unanswered and proved the devious manner in which eligible voters were being struck off.
Admission of Guilt
All these instances of violations committed with impunity by the CEC Gyanesh Kumar clearly testify to his functioning in a partisan manner. Now the orders of ECI that those left out in SIR process would be enrolled by launching a special drive for their inclusion constitutes an admission of guilt that crores have been disenfranchised. The widespread protests in streets by the anguished people facing the dreadful prospects of getting their names removed from electoral roll and finding it almost impossible to register themselves as voters by submitting documents have for the first time since independence has created a pitiable situation of seeing two classes of citizens, one with right to vote and other without voting rights.
Justice Bhuyan’s Remarks
Justice Bhuyan, a sitting judge of the Supreme Court very sharply remarked in his lecture at NALSAR in Hyderabad, “The Indian Constitution does not provide for two classes of citizens: citizens with voting rights and citizens without voting rights.” “Any process which,” he asserted, “leads to wholesale disenfranchisement of Indian citizens making them citizens without voting rights would be violative of Articles 326 and 14 of the Constitution of India.” While stressing that “... no one is above the constitution,” he remarked with emphasis “No authority can do it; no court can condone it. No one is above the Constitution.”
In other words such disenfranchisement on a mass scale on account of the partisan functioning of Gyanesh kumar is a bane of our electoral democracy facing existential threat on account of the SIR process anchored in exclusion rather than inclusion of voters. It is shocking that while massive protests have been launched in several parts of the country asking CEC Gyanesh Kumar’s resignation to safeguard the independence of ECI, Kumar instead of rebutting those charges at his level is being defended by the BJP for the way SIR has been implemented under his leadership. Such defence of Gyanesh Kumar testifies to his partisan functioning.
Proposal for ECI as Part of Fundamental Rights Chapter
Legislative intent of the Constituent Assembly on the issue of ECI enables us to understand that the framers of the Constitution very arduously dedicated themselves to establish an independent Election Commission and urged all concerned to safeguard it . While moving Article 289 (now Article 324) for discussion in the Assembly on June 15, 1949, Ambedkar remarked that in the beginning the Committee on Fundamental Rights of the Constituent Assembly was in favour of putting all issues concerning the elections including the establishment of ECI in the chapter on fundamental rights. He stated,: “…[T]he independence of the elections and the avoidance of any interference by the executive in the elections to the Legislatures, should be regarded as a fundamental right and provided for in the chapter dealing with Fundamental Rights.”
It is well documented that the ‘Fundamental Rights’ chapter prevents the State from encroaching on the rights of people. So it was contemplated that if election matters would be enshrined in the Fundamental Rights section, encroachment of the State, a key organ of which is the executive, could be put an end to easily. Such a vision to put matters concerning elections in the fundamental rights chapter was conjured up for safeguarding its impartiality for the “superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections.”
Apprehensions in Constituent Assembly on ECI’s Independence
Multiple members of the Constituent Assembly, while hugely admiring Ambedkar for setting up an impartial poll body without any interference from any quarter including the executive, were sceptical that future governments formed by political parties might abuse the provisions of the constitution to manipulate the Election Commission for its partisan purposes.
Professor Shibban Lal Saksena, an illustrious member of the Constituent Assembly while participating in the discussion on June 15, 1949, very presciently remarked, “It is quite possible that some party in power who wants to win next elections may appoint a staunch party man as Chief Commissioner”.
He went on to flag the point that in future there would not be a Prime Minister like Jawaharlal Nehru acclaimed for independence and impartiality and someone else with dubious attributes might become the Prime Minister and appoint an unworthy person as CEC, who would devastate the democracy and ruin the electoral process.
Tragically those words of Shibban Lal Saxena uttered in the Constituent Assembly in 1949 are playing out and CEC Gyanesh Kumar has fructified his apprehensions and the people across the country are enraged to see their voting rights, secured as matter of course, are being snatched away and election machinery manipulated to serve partisan purposes.
Another distinguished member of the Constituent Assembly H.V. Pataskar, who rose to become Union Information and Broadcasting Minister, in his speech asked Ambedkar to take stern steps against people who would exercise their power to “trifle with democracy on linguistic, racial, or other considerations”.
In juxtaposing the above remarks of Pataskar with the SIR generated disenfranchisement of people specifically those professing Islamic faith, women, speaking Bengali and of course those who are poor and Dalits one gets an unmistakable impression that in twenty first century India “linguistic, racial, or other considerations” are employed to deprive people of their voting right. In the Pataskar’s category, ‘other considerations’ one might add “logical discrepancies’ which CEC Gyanesh Kumar has manufactured leading to disenfranchisement of Bengal’s 2.7 million voters who appealed for inclusion in the voter list after clearances from Supreme Court established judicial tribunals.
Hriday Nath Kunjru, a man of high stature stated in his speech in the Constituent Assembly that people occupying exalted positions as CEC and EC and bereft of common honesty would wreck the constitutional scheme of governance and imperil democracy. Therefore, he stressed that the architecture of the Election Commission expounded by Ambedkar should be altered to “consist of impartial persons, so Election Commissioners may be able to discharge their duties fearlessly.”
He while demanding that the election machinery be completely insulated from political influences both from the states and Centr he observed:
“We are going in for democracy based on adult franchise. It is necessary therefore that every possible step should be taken to ensure the fair working of the electoral machinery. If the electoral machinery is defective or is not efficient or is worked by people whose integrity cannot be depended upon, democracy will be poisoned at the source; nay, people, instead of learning from elections how they should exercise their vote, how by a judicious use of their vote they can bring about changes in the Constitution and reforms in the administration, will learn only how parties based on intrigues can be formed and what unfair methods they can adopt to secure what they want”.
Kunjru’s words that if electoral machinery is operated by people bereft of integrity “....democracy will be poisoned at the source,”and “..how parties based on intrigues can be formed and what unfair methods they can adopt to secure what they want” get reflected in the context of the CEC Gyanesh Kumar who has demolished the independence of ECI and tragically made its functioning partisan.
Ambedkar’s Apprehensions
One may ask questions if B R Ambedkar as Chairman of the Drafting Committee of the Constituent Assembly ever apprehended that the Chief Election Commissioner or Election Commissioner would reduce the independence of Election Commission to a deplorable state by their acts of commission and omission and use it as the hand maiden of the executive? Yes, he did anticipate that ECI might be made subordinate to the Government of the Day. On June 16, 1949, during the debates in the Constituent Assembly on the draft Article 289 of the constitution dealing with the Election Commission, he presciently said:
“[T]here is no provision in the constitution to prevent the appointing of either a fool or a knave or a person who is likely to be under the thumb of the executive.”
A day earlier, on June 15, 1949, while moving the draft Article 289 in the Constituent Assembly for setting up an Election Commission, Ambedkar had observed:
“…[W]ithout any kind of dissent, that in the interest of the purity and freedom of elections to the legislative bodies, it was of utmost importance that they should be freed from any kind of interference from the executive of the day.”
Disband SIR
Ambedkar’s fears that if meritless people assume the office of CEC and EC then it would come under the executive’s thumb have come true. Now Gyanesh Kumar’s actions in violations of law and the Constitution echo Ambedkar’s anxieties concerning independence of ECI articulated in 1949. In fact, he confessed in the Constituent Assembly that the Drafting Committee and the Constituent Assembly suffered “a great deal of headache” to devise ways and means to protect ECI’s independent status. Under successive CECs and ECs right from the time when the Constitution came into force and till 2018 ECI’s independent functioning constituted an effective remedy to that “headache.” Now sadly because of CEC Kumar’s partisan functioning the “headache” has become intense and unbearable leading to serious and irreversible breakdown of the health of our democracy. Let those controlling the State apparatus and adjudicating in the Supreme Court take suo motu action and save India from a terminal and malignant crisis. It is doable and the first step is to disband SIR, and the present Election Commission, restore the names of those who have been disenfranchised and use the electoral roll of 2024-25 for conducting elections in a free and fair manner.