Ahmedabad: Ten minutes before a March 2024 meeting to appoint two election commissioners to the Election Commission Of India (ECI), the selection panel received a shortlist of six names. A longlist had been sent to them only the previous night—it had 212 names.
The selection meeting of the panel comprising Prime Minister Narendra Modi, union home minister Amit Shah and the then leader of the largest opposition party in the Lok Sabha Adhir Ranjan Chowdhury proceeded despite the apparent paucity of time to assess the candidates, and two candidates were picked, their names sent to the President of India, and their appointment letters signed by the President issued hours later.
Now, weeks before state Assembly elections in Maharashtra, Jharkhand and by-elections in Uttar Pradesh, the Constitutional body responsible for administering union and state elections in India is under a fresh cloud of doubt as the Congress party and others in October 2024 questioned the counting process in the Haryana assembly election.
The Supreme Court dismissed a plea for re-election in 20 seats where the Congress alleged discrepancies in electronic voting machine (EVM) battery levels during the counting process and questioned the integrity of the election result.
The documents, including meeting and agenda notes, that Article 14 accessed through the Right To Information (RTI) Act, 2005, reveal that the appointment of the election commissioners or ECs, who hold pivotal positions of power in determining how and when elections are held, has been partisan, rushed and lacking accountability.
The documents showed that the hasty March 2024 appointment of two ECs mirrored a previous single-day selection of one EC in 2022.
The meeting and agenda notes between November 2022 and March 2024 revealed how the process of appointing ECs is vulnerable to political manipulation.
1-Day Appointment
In November 2022, senior bureaucrat Arun Goel's sudden voluntary retirement from the service and his almost instantaneous appointment as EC the same day sparked a controversy and a challenge in the Supreme Court.
It led to the apex court forming a committee, including the Chief Justice of India, to oversee EC appointments to ensure the ECI was insulated from political interference.
In 2023, the central government amended the law to alter the SC-mandated committee, replacing the CJI and introducing a new system of selection and appointment of ECs. The March 2024 single-day perusal of candidates and appointment occurred under this new selection system.
In its September 2024 report, the high-level committee led by former president of India Ram Nath Kovind on ‘One Nation One Election’ or synchronised polls to the Parliament and state assemblies said the country had witnessed more than 400 elections since Independence, with the conduct of these elections being “beyond reproach”.
Doubts & Allegations
In fact, there were serious allegations and doubts regarding the mismatch in voting percentages and numbers in the Lok Sabha election of May 2024 as well as in the Haryana state assembly elections of October 2024 (here, here and here).
There was criticism of the 2024 Lok Sabha polling and counting process itself, first with regard to the ECI’s feeble response to complaints of hate speech at election rallies by top Bharatiya Janata Party leaders including Prime Minister Narendra Modi himself (see here, here, here and here); and finally with regard to discrepancies found between data on total votes polled on the electronic voting machines (EVMs) and the total number of EVM votes counted.
In the absence of any set official procedures for the appointment of election commissioners, the matter surfaced when the Supreme Court asked the government to submit the file on Arun Goel’s appointment as EC, said Jagdeep Chhokar, founder member and trustee of Association for Democratic Reforms, a civil society organisation that has, since 2003, conducted a detailed assessment of the criminal, financial and educational backgrounds of candidates and winners of elections to Lok Sabha and state assemblies.
It has also approached the courts on the functioning of democratic institutions, most recently challenging the Constitutional validity of the appointments to the ECI and on voter discrepancies in elections.
Chhokar said the role of election commissioners is perhaps of the greatest significance in an electoral democracy for they are responsible for overseeing the presidential election. “Thus, the selection process for ECs should be such that persons involved in each stage of the selection process shall have enough time for the application of mind and proper deliberation,” he said, adding that the recent swift appointments raised concerns about whether such careful consideration was truly feasible.
‘Lightning Speed’
On 15 May 2022, a vacancy for the position of election commissioner arose when Sushil Chandra’s term as chief election commissioner (CEC) ended and Rajiv Kumar was elevated, leaving one EC post vacant.
On 18 November 2022, union law minister Arjun Ram Meghwal proposed four candidates for consideration by the prime minister and the President.
The same day, 1985 batch Indian Administrative Service (IAS) officer Arun Goel submitted an application seeking voluntary retirement from the service. He had completed 37 years as a bureaucrat, and would have retired in normal course on 31 December that same year.
His application for a premature voluntary retirement was approved promptly. The central government waived the usual three-month notice period, making Goel’s retirement effective immediately.
The same day, the prime minister recommended Goel for the position of election commissioner.
Listed in the Supreme Court the very next week was a bunch of petitions asking for directions to insulate the office of the election commissioners from political interference. Advocate Prashant Bhushan, appearing for one of the petitioners, told the court that Goel, a secretary in the government, had applied for voluntary retirement on Friday, was appointed as election commissioner on Saturday and took charge on Monday.
On 25 November, after having inspected the files, a five-judge Constitution bench comprising Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar commented that Goel’s appointment appeared to have been undertaken with “lightning speed” on a single day.
“… the notification was brought out on the same day, the application was given the same day, it was accepted the same day and the appointment was made the same day… The file has not travelled even 24 hours,” Justice Rastogi said.
Supreme Court's Concerns
In a landmark judgement given on 2 March 2023, the Supreme Court raised further concerns about the apparent haste in the appointment process.
"We are a little mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him,” the bench said in its 378-page judgement in Anoop Baranwal Vs Union Of India, a public interest litigation (PIL) filed in January 2015 seeking an overhaul of the system for appointing members of the ECI, contending that the executive’s power to make these appointments has degraded the ECI’s independence over time.
The Constitution bench led by Justice K M Joseph directed the establishment of a committee to advise the President on ECI appointments. The committee was to include the prime minister, the Leader of the Opposition and the Chief Justice of India.
In August 2023, the union government introduced draft legislation to push back against the court-ordered appointment process.
The new law, passed by both houses of Parliament, removed the Chief Justice of India from the three-member selection panel, and additionally instituted a ‘search committee’ headed by the law minister, tasked with preparing a panel of five candidates for the selection committee's consideration.
As per the new law, the President would appoint the CEC and ECs based on the recommendation of this selection committee, which now comprises the prime minister, the leader of the opposition in the Lok Sabha, and a union cabinet minister nominated by the prime minister.
Not The First Time
Documents received from the legislative department of the union ministry of law and justice in July 2024, in response to a right-to-information (RTI) request filed by this writer, showed how rushed appointments were made to the election commission, among the country’s highest constitutional positions.
On 14 February 2024, Anup Chandra Pandey's term as election commissioner ended. On 9 March, Arun Goel resigned as election commissioner, abruptly making the EC a single-member body with only weeks to go for elections to the Lok Sabha.
As per the provision of the new law, documents showed, the search committee headed by the union law minister held two meetings, the first on 13 March at 5 pm and the second on 14 March at 10 am. They identified six names to recommend to the selection panel led by the prime minister.
1 Utpal Kumar Singh, IAS (Uttarakhand 1986)
2 Pradip Kumar Tripathi, IAS (Jammu & Kashmir 1987)
3 Gyanesh Kumar, IAS (Karnataka 1988)
4 Indevar Pandey, IAS (West Bengal1988)
5 Sukhbir Singh Sandhu, IAS (Uttarakhand 1988)
6 Sudhir Kumar Gangadhar Rahate, IAS (Jharkhand 1990)
If the search committee considered other names before shortlisting these six candidates, those were not available.
In response to this writer’s RTI application of 12 July 2024 seeking a list of names of candidates discussed by the search committee, a public information officer in the law ministry, section officer Navneet Kumar, said in writing, “Not available in Admin I ( LD) section.”
The minutes of the search committee’s deliberations do not provide any indication of the names considered before drawing up a shortlist.
According to a meeting notice dated 5 February 2024, signed by additional secretary Uday Kumara of the legislative department of the union law ministry, the search committee was to meet “for preparation of a panel of five persons for consideration for appointment as election commissioner”.
This panel of five would be forwarded to the selection committee for the appointment of an election commissioner as Anup Chandra Pandey’s term was set to end on 14 February.
Eventually, the search committee proposed six names for the appointment of two election commissioners.
Events of 14 March 2024
On 14 March, the following events took place.
The search committee meeting at which the shortlist was prepared was held at 10 am.
Two hours later, the selection committee headed by the prime minister met to finalise names for two election commissioners.
The selection committee, as we said, has two members other than the PM—union home minister Amit Shah and the Congress’ Adhir Ranjan Chowdhury, who was at the time the leader of the largest opposition party in the Lok Sabha.
The selection committee picked two names—Gyanesh Kumar and Sukhbir Singh Sandhu. The prime minister's office issued a note on the appointment of the two election commissioners.
The union law ministry sent the two names to the President of India. The President of India issued appointment letters to the two election commissioners.
The law ministry also uploaded the e-gazette related to the appointment.
The same day, Chowdhury voiced his dissent regarding the selection process, stating that he received six shortlisted names just 10 minutes before the meeting began.
A ‘Fait Accompli’
Chowdhury said he had been provided a list of 212 names to review the previous night. He asked how it was practical to thoroughly examine 212 names overnight to determine the most qualified candidate. He called the situation a “fait accompli”.
On 15 March, the two new election commissioners took charge.
Chhokar said neither the current search and selection committee process nor the Supreme Court's suggested approach seemed satisfactory.
“A more robust and transparent system would involve an existing parliamentary committee or a newly formed one to screen candidates for the posts of EC and CEC,” said Chhokar.
The committee's recommendations could be presented to Parliament, the appointments requiring a two-thirds majority of the members present and voting. “A similar process was proposed by Sibban Lal Saxena during the Constituent Assembly debates,” Chhokar said
Unexplained Postponements
Meetings of the search and selection committees, scheduled respectively for 6 February and 7 February, were postponed, according to the meeting and agenda notes circulated by the legislative department of the ministry of law and justice, accessed by Article 14 through an RTI application.
The new law on appointments to the ECI had come into force in January 2024, with the notification published in the Gazette of India. The following month, the search committee and selection committee were both constituted.
On 5 February 2024, a search committee meeting was proposed for 6 February, and of the selection committee on 7 February, given that election commissioner Pandey’s term was ending on 14 February.
On 6 February, the search committee’s meeting was rescheduled to 7 February, and on 7 February, both meetings were postponed until further notice, without any explanation.
On 9 March, significant developments occurred. Initially, it was proposed that the selection committee would meet on 15 March to appoint a new election commissioner, as noted in a meeting document that mentioned one vacancy.
However, on the same day, Arun Goel's resignation as election commissioner was accepted by the President of India.
Following this, the same day, the law ministry issued a notice advancing the selection committee meeting to 14 March, with a revised meeting note now indicating two vacancies for election commissioners.
Notably, the selection committee, scheduled to meet on 14 March, was responsible for finalising two names from a list provided by the search committee. However, as of 9 March, no meeting of the search committee was announced.
The search committee meeting was only announced on 12 March, with plans to convene on 13 March.
Cloud Over The EC’s Neutrality
The Supreme Court’s comments in 2022 about the haste in accepting Goel’s resignation from the IAS and appointing him EC the same day, and then in its 2023 judgement, were preceded by a series of instances in which the political independence of the ECI came under a cloud.
In November 2021, questions of propriety arose when then CEC Sushil Chandra and ECs Rajiv Kumar and Anup Chandra Pandey joined an “informal interaction” with the Prime Minister’s office on electoral reforms.
Former CEC S Y Quraishi wrote that the meeting was “unacceptable”. He said, “The distance of an arm’s length in interactions between institutions envisaged in the Constitution is sacrosanct.”
Another former CEC, O Rawat, was quoted as saying it was unprecedented, and if the government ever sought a meeting, it was “never held outside the EC or online or under the chairmanship of a government officer”.
Earlier, in the summer of 2021, two high courts (see here and here) castigated the ECI for not enforcing stringent Covid-19 restrictions, as top leaders including prime minister Modi addressed huge rallies.
In April 2021, the Kerala High Court directed the ECI to hold polling for three Rajya Sabha seats that were to fall vacant upon the retirement of members from Kerala, one each from the Congress, Indian Union Muslim League and the Communist Party of India (Marxist).
The EC had kept in abeyance an earlier notification to conduct the elections. Meanwhile, state assembly elections were held on 6 April 2021, and a new assembly was to be formed after results were announced on 2 May 2021. The petitioners argued that the incumbent Assembly should be enabled to vote for the three RS seats.
The HC observed that the EC had a duty to “avoid situations…where the nomination is made by the existing assembly and voting by another assembly”.
(Suchak Patel is an independent writer.)
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