January 9, 1990, was a red-letter day in the annals of Indian democracy. The newly ensconced Prime Minister Vishwanath Pratap Singh chaired a meeting on electoral reforms in Parliament with delegates from major political parties participating. The gathering threw up a host of ideas on electoral reforms, some enormously practical, others incredibly fanciful. Yet, it was for the first and last time in India that a prime minister had presided over a meeting on electoral reforms. This was an immensely symbolic gesture for any government in independent India. The path-breaking meeting resulted in the formation of a committee headed by the then Law Minister Dinesh Goswami. It had 11 more members including H.K.L. Bhagat, L.K. Advani, Somnath Chatterjee, and former Chief Election Commissioner (CEC) and Secretary General of Lok Sabha viz. S.L. Shakdher.
There were a host of recommendations in the report of this committee, published by the Ministry of Law and Justice in May, 1990. One of its recommendations was that the CEC should be appointed by the President of India in consultation with the Chief Justice of India (CJI) and the Leader of the Opposition (LoP) [in case no LoP is available, the consultation should be with the leader of the largest Opposition group in Lok Sabha]. The Committee wanted statutory backing to the arrangement. The same process was recommended for appointing the two other Election Commissioners.
The five-member bench of the Supreme Court recently gave exactly the same relief in its judgment in Anoop Baranwal & Ors v Union of India civil writ petition (No.104 of 2015) on March 2, 2023. It ruled that the appointments for the CEC and Election Commissioners shall be done by the President on the advice of a Committee consisting Prime Minister of India, the LoP in Lok Sabha (or the Leader of largest party in Opposition in Lok Sabha) and the CJI. This arrangement shall continue until the Parliament makes a law in this matter. Framing a law on this subject, expected under Article 324 (2) of the Constitution, has been kept at bay by successive governments at the Centre. The decision of the Supreme Court might actually spur the Modi government to enact a law.
Elections in India are governed by a) provisions of the Constitution b) laws enacted by Parliament like Representation of the People Acts, 1950 and 1951 c) rules notified by the Legislative Department, Ministry of Law and Justice. Any amendment to extend provisions in these categories is referred to as ‘electoral reforms’. The recommendations for electoral reforms could come from the Election Commission of India (ECI), Law Commission, Department Related Standing Committee of Parliament, or any high-powered committee specifically constituted for the purpose. The onus to steer the electoral reforms devolves upon the government of the day.
The Fourth Report of the Second Administrative Commission viz. Ethics in Governance (2007) stated that the past decade had seen more political reforms in India than in any other large democracy after World War II (P.9). However, experience shows that the government’s interest in electoral reforms has declined over the last decade and a half. No electoral reform went through the Parliament for a decade before Election Laws (Amendment) Act, 2021.
In such a situation, the Supreme Court, thanks to the instrument of Public Interest Litigation (PIL), has emerged as a major driver of electoral reforms. The Supreme Court made no secret of this in the aforesaid judgment: “In this regard, we are reminded that this Court has played a very proactive role in matters relating to elections and electoral reforms. Interference was noteworthy in matters relating to affidavits on assets, criminal antecedents, time-bound election petition trials, special courts for criminal trials of MPs and MLAs, protection from booth capturing, freebies and NOTA. The executive underreach justifies judicial oversight and activism, particularly when more than 72 years have gone by” (P.9-10).
The judgement leaves no doubt that the interim arrangement of a three-member consultative committee is not a case of judicial overreach. The recommendation came from the Dinesh Goswami Committee, which had several members and former members of Parliament. Though the then Prime Minister V.P. Singh did not exactly agree with the composition of the committee, he still wanted to give constitutional validity to a multi-member consultative committee. Thus on May 30, 1990, the Constitution (Seventieth Amendment) Bill, 1990 was introduced in Rajya Sabha. The Bill sought to amend Article 324, making the appointment of CEC made by the President of India after consultation with the Chairman of Rajya Sabha (i.e. Vice President of India), and the LoP. In case, there was no recognised LoP, the leader of the party in Opposition to the government having the greatest numerical strength in the House should be consulted. The Prime Minister was never separately mentioned for consultation, as it was understood that the President would receive his input from the Union Cabinet headed by the former.
The amendment also made the consultation of the CEC mandatory for appointing the other two Election Commissioners. Introduced in Rajya Sabha, the Constitution (Seventieth Amendment) Bill, 1990 outlived the fall of V.P. Singh and Chandrashekar governments. However, P.V. Narasimha Rao was not interested in pursuing the Bill. Thus on June 13, 1994, a motion to withdraw the Bill was moved in the Rajya Sabha and the process was completed the same day. The Constitution (Seventy First Amendment) Bill, 1990 related to the delimitation of constituencies and delimitation of legislatures (Lok Sabha and legislative assemblies) was simultaneously withdrawn.
While withdrawing these Bills, the then MoS, Law and Justice, had promised to bring forward a comprehensive Constitution (Amendment) Bill to provide for delimitation of the constituencies and amendment to Article 324 of the Constitution. He also promised to bring a comprehensive Representation of the People (Amendment) Bill. The withdrawal was opposed tooth and nail by the BJP members in Rajya Sabha. Sikander Bakht categorically stated that the BJP considered the withdrawal of these Bills against the commitment made by the government, against all legislative morality, in the spirit of denigrating autonomous institutions and anti-democratic in character.
While the Constitution (Seventieth) Amendment Bill, 1990 was withdrawn, the promised legislation was never brought in by any government since then. The Supreme Court’s recent order might finally nudge the government to legislate on the matter.
There is no doubt that all Chief Election Commissioners of India have been men of great personal and professional integrity. Their competence and vision made elections in the largest democracy in the world a step ahead of the challenges. Despite the fact that the ECI was not given even rule-making powers, they have consistently pursued electoral reforms with the government. However, appearance matters in democracy as much as substance. Therefore, the selection of a Chief Election Commissioner and other two Election Commissioners through a consultative committee will stand in good stead.
The writer is author of the book ‘The Microphone Men: How Orators Created a Modern India’ (2019) and an independent researcher based in New Delhi. The views expressed herein are his personal.
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