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