Former CEC S.Y Quraishi was critical of the Election Commission’s reluctance to meet the opposition parties on the issue of the use of 100% VVPAT slips and EVMs.

Last week, the surprise resignation of Election Commissioner (EC) Arun Goel and the subsequent developments ahead of the Lok Sabha elections, triggered a nationwide debate on the neutrality and the independence of the election watchdog.

Though the Central government has not made any statement on the reasons for the sudden resignation of the EC yet, a high-powered committee chaired by the prime minister filled the vacancies with two new Election Commissioners on March 14.

After the resignation of Goel, the three-member Election Commission of India was left with Chief Election Commissioner (CEC) Rajiv Kumar alone. The other member Anup Chandra Pandey retired in February this year.

While there is criticism over the appointment of the new commissioners on the eve of the announcement of the poll schedule, former CEC S Y Quraishi said that the extraordinary situation necessitated such an action. “Elections are being announced and the government would have faced criticism if they had gone about without filling the two vacancies. It is good that a full commission will be taking the call,” Quraishi told this newspaper.

EC in the thick of controversies

The abrupt resignation of Goel is the second in the last four years as his predecessor Ashok Lavasa opted to quit office in 2020. While Goel was in line to become CEC in 2025, Lavasa stepped down months before his promotion as the CEC. While the rumour was Goel exited due to some difference of opinion with the CEC, his entry too had sparked a row and was challenged in the SC in 2022. The court later observed that Goel was appointed in a ‘hurried manner’ by the government. Lavasa’s premature exit came after his dissent note to the ECI giving a clean chit to Prime Minister Narendra Modi and Union home minister Amit Shah on violating the Model Code of Conduct.

While the ECI was in the eye of a storm over several other controversies from electoral bonds to VVPATs, Quraishi admits that it has tarnished the credibility of the ECI as an independent institution. “These issues wouldn’t have been there if there was better communication. For instance, on VVPATs the EC should have come out and explained that there is no discrepancy. The lack of communication is creating problems and it is avoidable,” he said.

The former CEC was also critical of the Election Commission’s reluctance to meet the opposition parties on the issue of the use of 100% VVPAT slips and EVMs. “It is unacceptable and unpardonable. Why are they not giving an appointment? It is their job to meet the opposition and hear them out,” he said.

EC appointments under new law

The appointment of the new ECs — ex-bureaucrats Gyanesh Kumar and Sukhbir Singh Sandhu has had its fair share of controversies. It is the first time that election commissioners have been appointed under the new law — Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023— passed by Parliament last year.

Raising questions over the fairness of the selection process, the sole opposition member in the committee, Congress leader Adhir Ranjan Chowdhury, submitted a dissent note on the procedural lapses. According to Chowdhury, the panel did not heed his request to provide the names of the shortlisted candidates in advance and was handed a shortlist of six names 10 minutes before the meeting. The committee members include the PM, Shah and Adhir Ranjan Chowdhury.

Responding to criticism on the ‘lack of transparency and lightning speed’ in which the appointments were done, another former CEC N Gopalaswami told this paper that it has been the convention for many years that the prime minister chooses a name from among a database of high-ranking civil servants and advises the President to make the appointment. “For the last 65 years, prime ministers have been choosing the CECs and ECs. There were no objections yet. Now what’s the issue?” he asked.

Agreeing that the PM has been appointing ECs in the past without any objections, Quraishi argued that the composition of the collegium is skewed. “For the past several years, PMs have been making the appointments and there was never any objection. Therefore, if Parliament had decided that they would continue the old system, that would have been final. However, the composition of the Collegium is bad optics. That’s why Adhir Ranjan objected,” he said.

The contentious law

The new law, passed by Parliament in December, has been criticised for replacing the Chief Justice of India (CJI) in the selection panel for appointing election commissioners.

At present, the selection process is done by two committees — a three-member search committee headed by the law minister and two government secretaries; and a three-member selection committee headed by the PM, a Union minister nominated by the PM, and the leader of the single largest Opposition party in the Lok Sabha.

The law enacted by the government has done away with a Supreme Court order in March 2023, which directed that the CEC and ECs shall be appointed on the advice of a committee comprising the PM, CJI and the leader of Opposition in the Lok Sabha. The five-judge Constitution had observed that the core values of the Constitution, including democracy, and the rule of law are being undermined. In the order, the SC also said that the committee would be operative until Parliament enacts a law on the appointment of ECs. That new law replaced the CJI with a Union minister recommended by the PM.

Legal challenges

Though the SC took up the plea against the appointment of the new election commissioners on March 15, the court declined to stay the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act. In its plea against the law, the Association for Democratic Reforms (ADR) said the CJI should be brought back to the selection committee as directed by the SC. The petitioners argued that appointments were made while a challenge to the law was already pending in the SC.

On electoral bonds

After the EC published the details of the donations to political parties through electoral bonds on its website on March 14, questions were also raised on the credibility and transparency of the body. The details were published after prodding by the SC. Last month, the apex court declared electoral bonds unconstitutional.

The EC’s dilly-dallying on the issue of electoral bonds has also invited scathing criticism from many quarters. In 2017, much before the Finance Ministry implemented the electoral bond scheme in 2018, the EC wrote to the ministry saying it was a “retrograde step as far as transparency of donations is concerned”. In 2018, it said that the scheme has a “serious impact” on the transparency of funding of political parties.

However, contrary to its earlier stand, the Election Commission in 2021 opposed a plea in the Supreme Court for a stay on the release of the fresh set of electoral bonds. The EC’s flip-flop in the electoral bond scheme impacted its credibility, says Quraishi.

“The EC’s change of heart came in for public criticism because it had categorically opposed the scheme in 2018 explaining the reason. Why the change of heart with the change of incumbent? That was noticed and commented upon by all. It showed that there was a compulsion to toe the government line. It doesn’t show them in glory,” he said.

What Ambedkar said

The debate on the ‘independence of the poll watch body’ dates back to 1949, when the Chairman of the Drafting Committee Dr B R Ambedkar expressed his reservations in the Constituent Assembly that election commissioners and the CEC could come under the “thumb of the executive”. While discussing the appointment of the CEC, Dr Ambedkar said, “The tenure can’t be made a fixed and secure tenure if there is no provision in the Constitution to prevent a fool or a naive or a person who is likely to be under the thumb of the executive”.

During the UPA rule, a panel headed by Union minister Veerappa Moily recommended that a panel led by the PM, the LS Speaker, the Leader of the Opposition in the Lok Sabha, law minister, and the Deputy Chairperson of the Rajya Sabha make recommendations to the President regarding appointments of the CEC and ECs. In 2012, BJP leader L K Advani toed the line of the Moily report and wrote to the then PM Manmohan Singh seeking a panel for the appointment of the CEC and ECs. Advani suggested a collegium comprising the PM, CJI, the law minister and the leaders of Opposition in both the Houses to select the CEC and the ECs.