On December 28, 2018, Union Home Minister Rajnath Singh confidently told the Lok Sabha that the government was prepared for an election in Jammu and Kashmir any time. As Home Minister he knew the security situation in the State. He explicitly added that if the Election Commission decided to hold the elections, the Home Ministry would provide the security requisite for the conduct of a free and fair poll.
From December 20, President’s rule was imposed in the State with dubious constitutional validity. When the Rajya Sabha debated its ratification on January 3, Mr. Singh repeated his assurance in these unqualified terms: “We are willing to provide whatever security force Election Commission wants for holding elections there.” Responding to Congress leader Ghulam Nabi Azad’s question on why elections were not held after the BJP pulled out of the State government, Mr. Singh said, “If the Election Commission wants, our government will have no objection.”
Implication of assurances
The implication of both assurances in identically explicit terms to each House of Parliament on separate occasions was clear. Mr. Singh was cognisant of the security situation and was confident that a simultaneous poll was possible. But on March 10, Chief Election Commissioner Sunil Arora announced that while Assembly polls will be held simultaneously with the Lok Sabha polls in Andhra Pradesh, Arunachal Pradesh, Odisha and Sikkim, they would not be held likewise in Jammu and Kashmir.
He asserted, ahead of the reactions in Kashmir, that “the Election Commission will not capitulate to anyone”. The feeble reasons he gave, despite the Home Minister’s assurances, confirm the impression of a ‘fixed matter’. He argued, “The Election Commission recently visited Jammu and Kashmir, met political parties and government officials. Due to constraints in the number of security forces and recent violent incidents in Jammu and Kashmir, there will be no Assembly elections in the State.”
There are three obvious flaws in this laboured defence. The Union Home Minister is better informed of the political and security situation in Jammu and Kashmir than the Election Commission can be after its brief visit. He has inputs from the Central and State intelligence besides other sources. He was surely well aware of the “constraints in the number of security forces” when he repeatedly offered his categorical assurances. And when was Kashmir free from “violent incidents” ever since 1996, when elections began to be held after the outbreak of militancy there in 1989?
Suggestions and amendments
Mr. Arora was appointed as the Chief Election Commissioner without consultation with the Opposition. So were his two colleagues as Election Commissioners. The recent case draws attention to a grave lacuna in our constitutional system which its architect, B.R. Ambedkar, frankly admitted in the Constituent Assembly, on June 16, 1949: “My provision, I must admit, does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioners. I do want to confess that this is a very important question and it has given me a great deal of headache.”
In 1974, a Committee on Electoral Reforms, appointed by Jayaprakash Narayan, suggested that the members of the Election Commission should be appointed by the President on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition (or a Member of Parliament elected by the Opposition) in the Lok Sabha, and the Chief Justice of India. In May 1990, an All-Party Committee on Electoral Reforms recommended consultation with the Chief Justice of India and the Leader of the Opposition. This was modified in the Constitution (70th Amendment) Bill which the then Union Law Minister, Dinesh Goswami, who had chaired the Committee, moved in the Rajya Sabha on May 30, 1990.
Article 324(2) was to be amended to enjoin consultation with the presiding officers of both Houses of Parliament and the Leader of the Opposition in the Lok Sabha. The Chief Justice of India was dropped from this panel. In appointing the other Election Commissioners, the Chief Election Commissioner was also to be consulted. The Bill lapsed on the dissolution of the Lok Sabha. Consultation with the two political figures who preside over the House of Parliament is surely a far weaker check than one with the Chief Justice of India.
Instances of partisanship
On October 23, 2018, the Supreme Court referred to a five-judge Bench a PIL seeking a collegium-like system for the selection of the Chief Election Commissioner and the Election Commissioners. It was opposed by Attorney General K.K. Venugopal contending that persons of unblemished virtue had held the post of Chief Election Commissioner. This is untrue. Successive Chief Election Commissioners have been criticised for partisanship. S.P. Sen Verma’s report on the Fifth General Elections in India 1971-72 contains blatantly political remarks reflective of a clear bias in favour of the Congress. The CPI(M) held him responsible for rigging the elections to the West Bengal Legislative Assembly. Jayaprakash Narayan thought of appointing a non-official inquiry committee. S.L. Shakdher was rightly criticised for delaying by-elections arbitrarily. R.K. Trivedi was criticised for adopting double standards in holding elections in Assam despite the clear certainty that a free and fair poll was simply not possible in the State. A bloodbath followed. On Kashmir he rejected the State government’s views on the dates for spurious reasons. Who held those rigged polls in Jammu and Kashmir but the Chief Election Commissioner?
T.N. Seshan changed the trend. He and his successors like J.M. Lyngdoh won public confidence. Mr. Arora’s appointment as Chief Election Commissioner raised eyebrows. Recently, laws setting up institutions like the Lokpal invariably prescribe a wide consultative mechanism. The time has come to fill the lacuna which Dr. Ambedkar himself pointed out. It brooks no delay.
A.G. Noorani is a constitutional expert. Views expressed are personal
