Time to review appointment process of election commissioners? Panelists debate on Rajdeep Sardesai's show

India Today

The appointment of the new Chief Election Commissioner has ignited a debate about the selection process.

Transcript

00:00So, is the office of the Election Commission a vital office in a democracy now caught in

00:06an unfortunate political tangle?

00:08Is it time to simply review the manner in which election commissioners are appointed?

00:13Is the government's stamp on the Election Commission's appointment now increasingly

00:18apparent?

00:19Is there a Modi-Shah stamp, as the opposition alleges?

00:22Joining me now is O.P. Rawat, he's former Chief Election Commissioner and Jagdeep Chokhar

00:27is a founding member of the Association for Democratic Reforms that has been pushing for

00:32greater transparency, including in the appointment of election commissioners.

00:37Before I come to you, gentlemen, I just want to say what happens now has also happened

00:42in the past when it comes to the election commissioners and the way they're appointed.

00:48There are, remember, various complaints and controversies that are haunting the election

00:55At the moment, from the Congress complaining about alleged discrepancies in the Maharashtra

01:00election, why were more voters added?

01:03How did 40 lakh new voters get added, are among the questions that have been raised.

01:08Voter deletion has been another issue.

01:10Aam Aadmi Party claims voter names were being deleted ahead of the polls here.

01:15Haryana EVM Rao, Congress complaining about how EVMs having 99% charge, battery charge

01:21on counting day.

01:23We've also had in the Lok Sabha voter turnout, Congress citing a report by Vote for Democracy

01:29to question the turnout figures.

01:31I'll come to many of those controversies, but first I want to come to you, O.P. Rawat,

01:35as a former Chief Election Commissioner, when on the very first day these kind of statements

01:42are made, does it compromise in a way the position of the Chief Election Commissioner?

01:49If the opposition says he's a rubber stamp of the government.

01:53Rajdeep, I don't think so, because the whole matter has been conducted in accordance with

02:05the laid-down law.

02:07An honourable Supreme Court has said that until the Parliament enacts a law, only till

02:13then this panel suggested by the Supreme Court will do the scrutiny and selection process.

02:21So whatever has been done, it has been done strictly under the laid-down law.

02:26But it's been challenged, sir.

02:27Let's get the facts right.

02:29The Supreme Court had first said that the selection panel would include the Prime Minister,

02:37the Leader of the Opposition and the Chief Justice of India.

02:41The government then decides, we are bringing in a law, removes the Chief Justice of India,

02:46appoints a minister, in this case, Amit Shah.

02:48So it's 2-1.

02:49Now that is being challenged in the Supreme Court, which is hearing it tomorrow.

02:53What does the Modi government do, 48 hours before that, goes ahead and appoints the Chief

02:57Election Commissioner.

02:58Where does that leave the Supreme Court challenge which comes up tomorrow, sir?

03:06The challenge will be heard by the honourable Supreme Court and whatever judgement they

03:11deliver will be complied with.

03:13However, whatever has been done, because the present CEC was the Demitting Office and the

03:20Chief Election Commissioner's office cannot be headless for even a single moment.

03:26So you don't think it's a midnight coup.

03:30So you don't agree with Rahul Gandhi's claim that this is a midnight coup.

03:33You believe this has been done as per routine.

03:35Am I correct?

03:40As per the law, not routine, because routine was in fact much worse.

03:44Routine was that even LOP was not there in the selection panel.

03:48That's a very, you know, that's a point, Jagdeep Chokhar.

03:51I want to come to you and I want to bring, just put on record how election commissioners

03:57used to be appointed.

03:58I remember from the days of TN Session, initially the election commission was a single member

04:04body with one chief election commissioner.

04:06He used to be appointed by the union government.

04:08In those days, the Congress was in power and the Congress would, without consulting the

04:14opposition, appoint a chief election commissioner.

04:16The Narasimha Rao government in the mid 1990s appointed two election commissioners to clip

04:22the then Chief Election Commissioner Sessions powers by making it based on a majority vote

04:29so that decisions were taken in the commission on a majority vote.

04:32In March, the Supreme Court decided we'll include the Prime Minister, leader of the

04:37opposition, CJI, make it a little bit more neutral, one from each side and then the Chief

04:41Justice.

04:42The government reversed that by bringing in a new law replacing the Chief Justice.

04:46But the point, Jagdeep Chokhar, is every government wants possibly, including Congress, election

04:52commissioners that suit them.

04:54So what's new about this?

04:57Well, there is nothing new and we have worked with the election commission for 25 years

05:05and Mr. Rawat was also one of the chief election commissioners during that time and we had

05:10a wonderful working relationship.

05:13And at that time, election commissioners and the chief election commissioner was appointed

05:18by the government of the day and there had been all kinds of appointments, mostly good,

05:24but a few which left something to be desired.

05:28But over the last six, seven years, and we never filed a petition in all those 15 years.

05:35It was only in the last six, seven, eight years that we found that some of the actions

05:40of the election commission did not seem to meet the requirement of complete neutrality.

05:49Are you saying that's only happened in the last six, seven years, sir?

05:52Are you saying that's only happened in the last six, seven years?

05:55Give me an example.

05:56I am saying two things, if you let me say that.

05:59Yes.

06:00Even in the last 15 years, there were appointments which were indifferent, but they were not

06:06so intense that they affected the working of the election.

06:11When we felt that happening over a period of time and there was a pattern, we filed

06:16a petition.

06:18All we said was that the constitution says there should be a law and parliament has not

06:23made a law.

06:24Please ask the parliament to make a law.

06:27That was our original petition.

06:29When we filed that petition in that judgment, which is over 300 or 300 pages long, the Supreme

06:36Court, a constitution bench has spent three-fourths of the judgment trying to explain the rationale

06:43of appointment, which is that the appointment should not be under the exclusive control

06:48of the government.

06:50The judgment also courts Professor Shibbalal Saxena from the Constituent Assembly.

06:57In the Constituent Assembly, there was a debate and disagreement on should there be a law

07:03made or should it be left to the parliament of the country?

07:06Sir, but the government of the day, I'm sorry, the government of the day has brought in a

07:10law.

07:11The government of the day has brought in a law as amended by the Supreme Court.

07:15Just a minute.

07:16Just a minute.

07:17Let me complete.

07:18The government of the day brought in a law which followed the letter of the law, but

07:23not the spirit of the law.

07:25The spirit of the law was an appointment body, which is not exclusively under the control

07:33of the executive.

07:35That basic issue has been violated in the law that has been brought in.

07:41And we challenged the law within a week of this being brought in.

07:45We are not interested in any particular individual or any particular party.

07:49Our petition for reviewing this law and judicial oversight is part of the constitution.

07:57Supreme Court...

07:58I take your point.

07:59You've made an important point, sir, that the government, according to you, has followed

08:03the letter and not the spirit of the law, in your view, or the spirit of the Supreme

08:07Court judgment, which wanted election commissioners to not only be neutral, but be seen to be

08:13neutral.

08:14Take that OP Rawat, the point that Jagdeep Chowkar is making, when the Supreme Court

08:19intervened, appointed the Chief Justice of India on the panel, they obviously didn't

08:23want one side, the government, to have a majority on deciding the election commissioners of

08:28this country.

08:29That's where Rahul Gandhi is now raising a red flag, saying you have two people from

08:33the government, Mr. Modi and Shah, and he's there, so he says it's a rubber stamp.

08:42That issue is under the Supreme Court's consideration, and tomorrow they are going to hear.

08:46So I would refrain commenting on...

08:48No, do you think the new law is against the spirit?

08:52Do you think the new law brought in by the Modi government is against the spirit of the

08:57Supreme Court in ensuring neutrality of election commissioners?

09:05I just would say that whatever is the laid down law, as per our constitution, the government

09:11followed that and appointed the new incumbents.

09:14Okay, you're being very safe in there, but Jagdeep Chowkar, let me give you a final word.

09:20You said your petitions are not about individuals, but think about someone like Gyanesh Kumar

09:25there, appointed chief election commissioner.

09:27On day one, the opposition is gunning for him, saying he's Amit Shah's man.

09:32I mean, don't you think the opposition also should hold its fire till they see how Gyanesh

09:37Kumar performs?

09:38If there are decisions that he takes, which violate election guidelines or are seen to

09:44be non-transparent, isn't that the better way rather than start a character assassination

09:49from day one?

09:50This is not a question of individuals, whether it is Gyanesh Kumar or Rajiv Kumar or TN Seshan

09:57or OP Rawat.

09:58The system of appointment has to be seen to be neutral and fair.

10:05And it is not only the law made by the current parliament, there is a whole section of debates

10:11in the Constituent Assembly where Shibbalal Saxena actually said that the appointment

10:17should be done by two-thirds majority in the parliament.

10:21And I have written about this in The Hindu and in The Wire saying that the appointment

10:25actually is, the Supreme Court also says that the CEC is in a unique position, which is

10:33not held by anybody else in the country.

10:35So their appointment process has to be very, very carefully designed that there is not

10:41an iota of doubt in anybody's mind about their neutrality.

10:45Okay.

10:46I think you make a fair point there.

10:47At the end of the day, if you are the Chief Election Commissioner of India and it's expected

10:52therefore to be the ultimate neutral umpire, the entire process by which you are made Chief

10:57Election Commissioner should be as transparent as possible and you must be not only neutral

11:03but seen to be neutral.

11:05And that's where really the tangle has now once again reached the Supreme Court.

11:09Rahul Gandhi raising a red flag, we'll wait and see how the Supreme Court responds.

11:14Gopi Rawat, Jagdeep Chokhar, for joining me here tonight, thanks very much for joining

11:18me on my Top Talking Point.

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