deepening-fault-lines-between-bjp-cong-now-over-cec-ecs

The fault lines between the ruling Bharatiya Janata Party and the principal opposition party, the Congress appear to be deepening further and further. Latest bone of contention between the ruling and the opposition parties is the appointment of the Chief Election Commissioner of India and the Election Commissioners. Interestingly, the Congress’ stand on the appointments of the CEC/ECs right now is the same as that of the BJP in 2012, when it (the BJP) was in opposition, like the Congress is now.

 

Congress, having lost three consecutive General Elections in 2014, 2019 and 2024 has consistently been raising doubts and questioning the fairness of the electoral process. Although it has not so far directly accused any of the Chief Election Commissioners or Election Commissioners of any bias, but it has regularly maintained that it has a “problem” with the “electoral process” and also the fairness of the Electronic Voting Machines (EVMs).

 

The process of the selection of the CEC and the ECs is the latest ammunition the Congress has added to its arsenal while attacking the government and accusing it of “sabotaging” and “subverting” the democracy and democratic institutions. Senior Congress leader Rahul Gandhi has been consistently alleging that the BJP government was “attacking” the constitution. He says that the BJP was not directly attacking the constitution, but by way of weakening the constitutional institutions like the Election Commission of India. Exclusion of the CJI from the selection process of the CEC/ECs, he says, is another example.

 

During his speech in the parliament on the motion of thanks to the President’s address, Gandhi specifically raised the issue of the appointment of the CEC/ECs. He questioned the BJP’s intentions of reversing the Supreme Court of India’s decision that mandated that the selection committee for the CEC/ECs should have the Prime Minister, the Leader of the Opposition and the Chief Justice of India as its members.

 

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The judgement was unanimously passed on March 2, 2023 by a ‘five-judge Constitution Bench’ of the Supreme Court of India, headed by Justice KM Joseph, in Anoop Baranwal vs Union of India case. The petitioner had pleaded that the earlier process of selection of the CEC/ECs gave absolute powers to the Prime Minister on whose recommendation the President would appoint the CEC/ECs. The judgement underlined the importance of protecting the Election Commission from “executive interference” and the “parliament’s inability to pass legislation” to guarantee the Commission’s independence in future.

 

Opinion is divided on whether the “executive” should allow “judicial” interference in the matters of policy making. The government argued that the judicial interference in prescribing the procedure for the appointment of the CEC/ECs would break the concept of separation of powers between executive, legislature and judiciary.

 

The executive (read the government) argued that the court must step in only when a basic right is at stake, while policy matters should not be subject to judicial intervention. Besides, it argued that the court directive would be against Article 74 which mandates the President to act on the advice of the Council of Ministers to form a committee to suggest the names for the appointment to the Election Commission of India.

 

The Government of India passed a legislation, ‘Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill-2023’ in both the houses of parliament by a voice vote in December 2023. Under the new law, the CEC/ECs will be appointed by a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and one of the ministers nominated by the Prime Minister, thus excluding the CJI.

 

Congress has opposed the law, maintaining that it gives undue advantage to the government, as there will be two nominees of the government against one from the opposition. The Congress wants that instead of the Prime Minister’s nominee, the third member should be the Chief Justice of India, according to the Supreme Court verdict of March 2023 to ensure balance.

 

The new legislation has already been challenged in the Supreme Court of India by an NGO, the Association for Democratic Reforms (ADR) in March 2024. The apex court at that time refused to stay the new law that excluded the Chief Justice of India from the committee to appoint the CEC/ECs.

 

It is exactly the sort of reversal of roles/stand between the Congress and the BJP on the issue of the appointment of the CEC/ECs. It was in the year 2012 that senior BJP leader and former Deputy Prime Minister LK Advani had suggested setting up a collegium like system for the appointment of the CEC/ECs and also the Comptroller and Auditor General (CAG) of India.

 

Advani, in a letter to the then Prime Minister, Dr Manmohan Singh, had suggested that the collegium/committee should consist of the Prime Minister, the Law Minister, Leaders of Opposition of Lok Sabha and Rajya Sabha and the Chief Justice of India. The suggestion had at that time been endorsed by DMK veteran M Karunanidhi and former CEC MY Qureshi also. However, the Congress did not take any initiative to change the system of appointments.

 

And it was only after the existing system of appointment was challenged by Anoop Baranwal in the Supreme Court, that led to the famous verdict about the selection process of the CEC/ECs by the five member constitutional bench ordering that the appointments be made by a committee consisting of the Prime Minister, the Leader of the Opposition in Lok Sabha and the Chief Justice of India.

 

Later the government of India passed a legislation that excluded the CJI from the committee and included one of the ministers, who would be nominated by the Prime Minister as the third member of the selection committee, thus providing an advantage to the government.

 

The Congress being in opposition right now, is well justified in raising the issue. But when it was in power, it acted in no different manner and allowed the then existing system of appointments to continue. The BJP government is doing now, what the Congress governments did in the past, to retain control over the appointments. This of course raises questions over the impartiality, not necessarily the fairness, about the selection process.

 

At stake is not only the credibility of an institution like the Election Commission of India, that has so far served the country so well and helped in strengthening democracy, but also the constitutional and democratic authority of the legislature and the executive.

 

It will be better for the ruling and all the opposition parties to come together and find a mutually and consensual way out. Otherwise, they risk conceding the executive authority of policy making to the judiciary. Today it is the BJP, which is in power, tomorrow it may be the Congress. The Constitution has left the policy making with the legislature and it should better be kept like that. Onus is more on the BJP, since it is in power, than on the Congress and other opposition parties to find a way out and not let the executive and the legislative authority get saturated and eroded.