S.N. Sahu 
Since the year 2011, January 25 is celebrated as National Voters’ Day to commemorate the foundation of the Election Commission on that day in 1950, a day preceding January 26, when the constitution came into force and our country emerged as a republic.
It is indeed painful that on the occasion of the 75th anniversary of the EC this year, there is an alarming erosion of its credibility as an impartial and independent body on account of the acts of commission and omission by the chief election commissioner (CEC) and election commissioners.
Among other activities, the alleged non-transparent manner in which elections are conducted and electoral rolls are prepared by arbitrarily adding the names of lakhs of people to the voter list and excluding scores of them just before the election schedule has raised doubts about the EC’s fair functioning.
Such unenviable records of the EC constitute a damning indictment of its partisan role which compromised the conduct of free and fair elections constituting the basic structure of the constitution.
Golden jubilee of the EC
Only twenty-five years ago the EC provided a refreshingly contrasting picture when it celebrated its golden jubilee. The then-President K.R. Narayanan while participating in its inauguration hugely complimented it for having been rated very highly by the people in a public opinion poll, far ahead of the police, the bureaucracy, the political parties, the Union government, local self-government and even the judiciary.
He specifically referred to its proven record of withstanding the storms of our political life and earning a global reputation for discharging its functions with efficiency and impartiality.
The demolition of its constitutionally mandated functioning anchored in the ideals of impartiality and neutrality has been pointed out by opposition parties and several other bodies monitoring the EC’s conduct in organising elections and upholding the purity of the electoral process.
Of late, the Supreme Court has also expressed concerns about EC’s independent functioning.
Supreme Court on EC’s functioning
For instance, on November 24, 2022, two years before the 75th anniversary of the EC’s founding, a five-judge constitution bench headed by Justice K.M. Joseph, while hearing a batch of petitions seeking reforms in the system of appointing election commissioners, observed that the government pays only “lip service” to the independence of election commissioners.
It described the situation as alarming and underlined the point that a CEC like late T.N. Seshan, known for bringing key electoral reforms during his tenure from 1990 to 1996, was a dire necessity.
Justice Joseph asked, “Do you think the Election Commissioner … if he’s asked to take on none less than the prime minister – it’s just an example – and he doesn’t come around to doing it: Will it not be a case of [the] complete breakdown of the system?”
In fact, CEC Rajiv Kumar, with a constitutionally enshrined responsibility of taking on any functionary of the government including the Prime Minister Modi, could not do so when complaints were filed with EC that he used religion and toxic communal narratives on multiple occasions in violation of the law during the election campaign for the 2024 general elections.
Kumar only issued a notice to BJP president J.P. Nadda and not to Modi for a reply. It was a glaring case of evasion of duty on the part of Kumar, who when asked on a later date why the prime minister was not held accountable for his appeal to votes on religious grounds, famously replied that people occupying high offices knew their responsibilities and duties.
Clearly, CEC Kumar acted contrary to the idea of an independent EC and so proved the apprehensions of Justice Joseph – less than 25 years after the EC was rated higher than the judiciary – that the inability of the CEC to take on a prime minister for his acts of commission and omission would mean a complete breakdown of the system.
Less than two years before the 75th anniversary of the EC, the Supreme Court in its judgement in Anoop Baranwal vs Union of India delivered on March 2, 2023 made significant observations about the independence and impartiality of the EC and remarked that “an election commissioner is answerable to the nation”.
“The people of the country,” it noted, “look forward to him so that democracy is always preserved and fostered”.
It proceeded to add: “This means that the Election Commission must act within the constitutional framework and the laws. It cannot transgress the mandate of either and still claim to be independent. Riding on the horse of independence, it cannot act in an unfair manner either.”
Then it forcefully remarked, “A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy. An independent person cannot be biased.”
Laying down the attributes of independence, the apex court stated, “Holding the scales evenly, even in the stormiest of times, not being servile to the powerful, but coming to the rescue of the weak and the wronged, who are otherwise in the right, would qualify as true independence.”
Also read: Was the EC Waiting for the SC to Remind it of the Seriousness of its Responsibility?
Further expanding the meaning of independence it stated, “Upholding the constitutional values, which are, in fact, a part of the basic structure, and which includes, democracy, the rule of law, the right to equality, secularism and the purity of elections otherwise, would, indeed, proclaim the presence of independence”.
“Independence,” it emphatically noted, “must embrace the ability to be firm, even as against the highest.”
Such sharp and yet sane remarks of the Supreme Court clearly outlined the malaise deeply eroding the EC’s independence. Has the CEC acted in tune with SC’s observation that “independence must embrace the ability to be firm, even as against the highest”?
The answer would be an emphatic no. CEC Kumar abdicated his responsibility to act against “the highest”, Prime Minister Modi. He is on record in endorsing Modi’s stand that there should be anonymity of donors paying funds to political parties in negation of the SC judgement declaring the electoral bond scheme as unconstitutional.
Recently he concurred with the government’s amendment of election rules not to supply information including CCTV videos and digital data concerning polling under RTI.
Ambedkar’s apprehensions
All such activities of the CEC prove the apprehensions of B.R. Ambedkar that in the absence of a constitutional provision for appointing election commissioners, the government of the day might appoint fools and unworthy persons who will in all likelihood, in his words, “be under the thumb of the executive”.
He said so while replying to the discussion in the Constituent Assembly on June 16, 1949 on Article 289 of the draft constitution dealing with the EC.
Government dominance in appointing CEC and ECs
The Modi government negated the order of the SC issued in its March 2023 judgement in Anoop Baranwal that election commissioners and the CEC would be appointed on the basis of the recommendation of a committee consisting of the prime minister, the chief justice of India and the leader of the opposition in the Lok Sabha.
It did so by passing a law in parliament in late 2023 and providing in it that the position of chief justice in the committee would be replaced by a minister to be nominated by the prime minister.
Effectively, the dominance of the government in appointing the CEC and election commissioners has been ensured and it proved the concern of the SC that the government pays lip service to the independence of the EC.
The manner in which CEC Kumar has functioned when the 75th anniversary of the EC is being observed proves beyond doubt that it has come under the thumb of the executive without any semblance of accountability to the nation and, therefore, there is now massive push back against it from all concerned.
S.N. Sahu served as officer on special duty to former President K.R. Narayanan.