The recent controversy surrounding the Election Commission is a red-card offence which, in football parlance, would mean marching orders. This raises a very important issue. Does the EC itself need a code of conduct?
The EC, which comprises the Chief Election Commissioner and other Election Commissioners, is responsible for holding free and fair elections in India and acts as the custodian of democracy. It is a constitutional regulator. Those who are appointed to the EC must be like Caesar's wife -- above suspicion, men of impeccable integrity and credibility, and must be seen as fair and impartial in order to command the respect of citizens of this country and of all political parties.
How are the CEC and election commissioners to be appointed? Past practice shows that retired bureaucrats are appointed to this office. This leads to a situation where a former bureaucrat, on the verge of retirement, is appointed by the political party in power.
Obviously, the political parties will choose a person whom they perceive to be close to their ideology. It is a political call since decisions made by the commission have political significance and consequences; like, for example, the timing of holding elections, whether simultaneous elections should be held at the Centre and states or should they be held at different times. This could mean victory for one and defeat for another political party.
The present scenario virtually excludes eminent/reputed people and professionals. It is, therefore, vital to have an independent committee which is broad-based and representative, with the Prime Minister, the Leader of Opposition, the Speaker of Lok Sabha, representatives of recognised national parties and eminent citizens including Bharat Ratna awardees agreeing on nominations. They must function in an open and transparent manner so that no political party can question the credibility and impartiality of a candidate.
Interestingly, this very issue of political interference is what resulted in changing the rules for appointment of judges. Till the early 1990s, judges were appointed after consulting the Chief Justice of India, even though the executives had the last word.
In a landmark case, the Supreme Court held that judges to the higher judiciary would be appointed by the Chief Justice of India in consultation with a collegium consisting of the five senior-most judges of the Supreme Court. In other words, judges in this country appoint themselves.
A time could come when the CEC, who has been given the same constitutional protection as a judge of the Supreme Court, may ask for similar powers when it comes to the appointment of ECs and regional and state commissioners on the ground that this will insulate the ECs decisions from any form of political interference. This would set in motion a dangerous precedent.
Indeed, in the case filed by former CEC T N Seshan against the government which sought to curtail his powers by appointing two Election Commissioners (M S Gill and G V G Krishnamurthy), the independence of the EC was reiterated by the Supreme Court.
While the court did not uphold Seshan's appeal, it said that, under the constitutional scheme, the CEC had to be protected from political and executive interference. It is also important to keep in mind that even the recommendations of a non-constitutional regulator, such as the telecom one, are to be taken seriously -- in Cellular Operators Association of India vs Union of India, the Supreme Court said: "Due weight has to be attached both to the recommendations of TRAI which consists of an expert body as well as to the recommendations of GOT-IT, a committee of eminent experts from different fields of life, which had been constituted by the Prime Minister".
It is surprising that the same weight is not being given to the recommendations of a constitutional regulator.
What we have witnessed is an in-house fight between the CEC and an Election Commissioner, each alleging the other which, in turn, has become an instrument of oppression and in the process has lowered the dignity of the Election Commission. This does not make for efficient functioning of the EC, as it has created a divided house.
This tamasha is being played out just before the upcoming general elections. It can have a bearing on not only the credibility of the election process, but also on certain decisions related to holding of the elections.
In an era of coalition politics, this can be risky and it is imperative to have a code of conduct for the CEC/Election Commissioners. This code must consist of norms and guidelines. They must be administered an oath of office and must furnish a certificate of independence much like the sort that an arbitrator is required to provide before deciding on a dispute.
This code must govern the scheme and guidelines to regulate the manner of appointment, the criteria of selection which would be consistent with the intention of the framers of the Constitution, who created an independent election commission vested with full powers to ensure that the will of the people through the ballot is fully protected.
However, the credibility of this institution in the light of recent controversy has cast a doubt in the minds of the public. It has resulted in a political crossfire, which has given a twist to the matter, with the two mainstream political parties supporting and opposing the CEC and an Election Commissioner.
The International Cricket Council, to cite another regulatory body, has a code of conduct for the players to protect the reputation of the game and to prevent it from getting into disrepute. The ICC does not include referees and officials.
A similar code must be put in place to regulate the EC, to keep the shine on the commission whose independence and credibility are at stake in a democracy as envisaged by the founding fathers and framers of our Constitution.
Another issue is the one pertaining to ethics and morality. The law, beyond a point, cannot regulate the conduct of the persons occupying high constitutional posts. Morality, ethics and propriety must weigh with high constitutional functionaries. The conduct of N Gopalaswami and Navin Chawla has strengthened the need for a code, to regulate the regulator. In the past, if a finger was pointed towards the Election Commissioner, or if there was an allegation of bias and partiality, it would have been taken seriously.
Often, such issues are raised even in a court of law against the judge hearing a particular case. In such situations, judges excuse themselves from hearing a particular matter since no individual is above the institution that he is supposed to serve -- they are creatures of the institution, and exist only if the institution is respected.
Propriety demands that in such a situation, the incumbent functionary would, on moral and ethical grounds, demit office but this has not happened though there are serious allegations of bias and partiality.
The House of Lords, in the case of Pinochet, observed "There could be cases where the interest of the judge in the subject-matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding [which might be small] in a public company involved in the litigation".
This yardstick must be applied to the present case and it is certainly not proper and ethical for a constitutional functionary such as the Election Commissioner to continue when serious doubts are cast on his impartiality. In this case, the historical relationship with one political party would fall within the ambit of apparent bias.
In the end, it boils down to one simple fact; institutions created by the Constitution have great credibility but we must draw up a code like the code for other stakeholders, such as for contesting candidates, MPs, ministers, judges, political parties, et al.
The author is an advocate practicing in the Supreme Court