Manas Dasgupta
NEW DELHI, Feb 18: The appointment of Mr Gyanesh Kumar as the Chief Election Commissioner to succeed Mr Rajiv Kumar, who retired on Tuesday, has sparked a political controversy with the Leader of the Opposition in the Lok Sabha Rahul Gandhi describing the Centre’s “midnight decision” to be both “disrespectful and discourteous” and the BJP hitting back branding his criticism as “politically motivated” and accused him of undermining an elected government’s constitutional mandate through “malicious” judicial activism.
The BJP’s reaction came after the Congress leader said it was “disrespectful” and “discourteous” for the Prime Minister Narendra Modi and the Union Home Minister Amit Shah to have made a midnight decision to select the new CEC when the process of selection was being challenged in the Supreme Court and it was hearing the matter this week.
The government has announced the appointment of the senior-most election commissioner Gyanesh Kumar as the new CEC and named IAS officer Vivek Joshi as the new Election Commissioner. The announcement was made late on Monday night after the third member of the panel at the meeting on Monday presented a dissent note and left the meeting seeking for an adjournment of the new appointment for the time being since the Supreme Court was seized with the matter.
Despite Mr Gandhi’s objections, the centre decided to go on with the new appointments since halting the process would mean leaving the key post vacant. Following the announcement of the names, Mr Gandhi posted his dissent note on the social media on Tuesday. “During the meeting of the committee to select the next (Chief) Election Commissioner, I presented a dissent note to the PM and HM that stated: ‘The most fundamental aspect of an independent Election Commission… free from executive interference… is the process of choosing the Election Commissioner and Chief Election Commissioner.”
“By violating the Supreme Court order and removing the Chief Justice of India from the committee, the Modi government has exacerbated the concerns of hundreds of millions of voters over the integrity of our electoral process,” Mr Gandhi said on X. “As the LoP (Leader of the Opposition in the Lok Sabha), it is my duty to uphold the ideals of Babasaheb Ambedkar and the founding leaders of our nation and hold the government to account.” “It is both disrespectful and discourteous for the PM and HM to have made a midnight decision to select the new CEC, when the very composition of the committee and the process is being challenged in the Supreme Court and is due to be heard in less than forty-eight hours.”
The row over the appointment of the next CEC stems from a controversial change in the law, which now says he/she will be selected by a panel consisting of the PM, a cabinet minister (in this case, the HM) and the Leader of the Opposition. Critics argue this gives the centre an edge in selecting the individual who will oversee conduct of nearly two dozen state elections over the next four years.
This edge, critics, including the opposition parties, have argued and will argue before the Supreme Court this week, robs the CEC selection panel of even the appearance of neutrality. This contentious new law was pushed through by the government in 2023 after the Supreme Court ruled the selection committee should consist of the PM, the LoP, and the Chief Justice.
Hitting Mr Gandhi back, BJP’s IT department head Amit Malviya said Mr Gandhi’s dissent on the appointment of the Chief Election Commissioner (CEC) was not just politically motivated but also lacked merit. He said on X, “It is an attempt to undermine the constitutional mandate of the elected government through malicious judicial activism. Additionally, it conveniently misreads and misinterprets the Supreme Court’s judgment on the CEC’s appointment.”
He noted that a five-judge Constitution bench had revised the process for appointing members of the Election Commission of India (ECI) in 2023, ruling that the President should appoint the CEC and election commissioners based on the recommendation of a committee comprising the PM, LoP in Lok Sabha and the Chief Justice of India. However, the court clarified that this arrangement would remain in place only until Parliament enacted a law establishing a permanent mechanism, he added.
To determine the original intent of the Constitution’s framers, Malviya said the court had analysed the 1949 Constituent Assembly debates and noted that it the appointment process was left to Parliament’s discretion. He said the President appointed the CEC and election commissioners solely on the prime minister’s recommendation before the ruling.
Mr Malviya said, “Thus, the current appointment process is more structured, transparent, and inclusive, involving multiple stakeholders, including the Leader of the Opposition.” The new law that governs the appointment process puts in place a search committee led by the law minister and two senior bureaucrats that shortlists five candidates. This list is then sent to a selection committee comprising the prime minister, the Leader of the Opposition, and a Union Cabinet Minister (in this case, the Home Minister), he added.
Attacking the Congress, he said the party and the Gandhis, in particular, should be the last to sermonise on the appointment of the CEC, given their record of “abusing the office, appointing pliant candidates, and later doling out political appointments to incumbents as a reward for their services after stepping down.” He shared a list of several former CECs who were later given different positions or honoured with Padma awards by the then government.
Mr Gandhi claimed that the Modi government violated the Supreme Court order by removing the Chief Justice of India from the committee. He said the government has exacerbated the concerns of hundreds of millions of voters over the integrity of our electoral process.
In his dissent note presented before the panel, Mr Gandhi cited the speech of B.R. Ambedkar while speaking in the Constituent Assembly in June 1949 to discuss the setting up of an independent Election Commission, where he (Ambedkar) had warned about executive interference in India’s democracy and the affairs of the Election Commission.
Mr Gandhi also pointed out that in a judgment on March 2, 2023, a Constitutional Bench of the Supreme Court ordered that the appointment of the CEC and Election Commissioners (ECs) should be undertaken by a committee comprising the Prime Minister, LoP, and the Chief Justice of India.
“The Supreme Court judgement reflected the larger concern among hundreds of millions of voters over the integrity of our electoral process. This is also reflected in public surveys that show a continuing decline in trust of voters in India’s election process and its institutions. Unfortunately, soon after the Supreme Court order, the Government of India notified a legislation in August 2023 that bypassed the spirit and the letter of the Supreme Court’s order,” Mr Gandhi noted in his dissent.
The Opposition leader said the Union government’s legislation reconstituted the committee to appoint the CEC and ECs to include the Prime Minister, the LoP, and a Union Cabinet Minister to be nominated by the Prime Minister, removing the CJI from the panel. “This is in flagrant violation of the letter and spirit of the Supreme Court order,” he noted.
He said this government order was subsequently challenged by a public interest litigant, and the Supreme Court had indicated its intention to take up this matter on February 19 which was less than 48 hours away. “Therefore, it is the view of the Congress party that the process of choosing the next CEC be deferred until the Supreme Court hearing and this meeting be postponed,” Mr Gandhi added.
The top court said it would on February 19 take up on “priority basis” the pleas against the appointments of the CEC and ECs under the 2023 law.
