Why Supreme Court must act now to save the Election Commission

The central concern in liberal constitutional democracies is the idea of constitutionalism, which means that no one should have absolute power or discretion. The Election Commission of India was made a multi-member body to further this goal. Accordingly, the law provides that the EC must take decisions either unanimously or by majority. The recent expose has revealed that the EC was divided 1:2 on a number of crucial issues. If this is so, then such decisions cannot be treated as the decisions of the EC. Even when the chief election commissioner is in the majority, the views of dissenting members must be given due importance as all commissioners have equal status. Such a practice would improve both the impartiality and the public perception of the EC.

Democratic norms require that dissent should not only be recorded but also made public. The EC does not deal with matters of national security. Differences among election commissioners are something that citizens, as the sovereign masters of our republic, are entitled to know. One expects such decisions to be taken at EC meetings with a proper agenda and minutes. Dissents should certainly be included in the minutes, with dissenting notes annexed to them. The EC’s latest press note has at least promised the circulation of agendas and minutes.

The law is clear that EC decisions must be either unanimous or by majority. If Form 6 was not approved by two of the three members, it is illegal. [Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi reportedly objected to the move.] It is wrong to say that the Supreme Court has approved the latest Form 6. Its judgment on the SIR in Bihar was delivered in May, whereas the new Form 6 was introduced in July. The court did not allow the EC to go against the statutory scheme arbitrarily. The EC has to give reasons. There is no blanket permission from the apex court.

The EC’s independence and efficient functioning can be ensured if people of impeccable integrity, acceptable to both the ruling party and the opposition, are appointed. Neutrality is not an ornament of the EC; it is the constitutional reason for its existence. In the Mohinder Singh Gill case (1978), Justice V.R. Krishna Iyer, echoing Lord Camden, cautioned that “wide discretion is fraught with tyrannical potential even in high personages, absent legal norms and institutional checks”.

To err is human. A democracy can survive an umpire’s wrong call, but it cannot survive the suspicion that the umpire was deliberately chosen to make it. Accordingly, to restore the credibility of the EC, the Supreme Court should immediately hear the recent reference, preferably within November, and read down Section 7 of the new law by providing that the selection committee comprising the prime minister, a cabinet minister nominated by the prime minister and the leader of the opposition in the Lok Sabha must select the election commissioners unanimously. There is no need to include the chief justice of India.

It is an emergency, and the Supreme Court should rise to the occasion and save Indian democracy.

—As told to Kanu Sarda.

The author is a constitutional law expert and vice chancellor of Chanakya National Law University, Patna.