Two Appointments, One Blow to Institutions

The recent two appointments, one as an Election Commissioner & other as the Chairperson of NHRC, shows that Indian democracy is on the verge of authoritarianism.

  Picture Courtesy : Mint

The Centre recently cleared two key appointments, of Anup Chandra Pandey, former chief secretary of Uttar Pradesh as Election Commissioner and former Supreme Court judge Arun Mishra as NHRC Chairman. These appointments would make anyone question this government’s commitment to an independent Election Commission and Human Rights Commission. They reaffirm the recent V-Dem report that categorises India among electoral autocracies. A critical decline in the performance and independence of institutions including the election commissions, information commissions, and statistical commissions since 2013, is the reason for India’s fall in the ranking.

The Shakespearean line ‘O, it is excellent to have a giant’s strength, but it is tyrannous to use it like a giant’—applies to the current regime. No doubt the ruling BJP has secured thunderous electoral majorities, but it is using these victories to curb dissent and suppress the right to know. Independent institutions are supposed to act as checks on arbitrary government decisions. For instance, the Supreme Court has repeatedly stressed the independence of the Election Commission and made the point recently in CEC vs MR Vijayabhaskar. In this context, to appoint Pandey, who is known to be close to Uttar Pradesh Chief Minister Yogi Adityanath, does not seem to meet the criteria of institutional independence of the commission in terms of appointments.

At present, the Chief Election Commissioner and Election Commissioners are to be appointed by the President on the advice of the Cabinet under the Transaction of Business Rules, 1961. Unlike the appointment procedure of, say, the CBI, appointments at the CEC and EC do not involve the judiciary or Opposition parties, even though both are stakeholders in a democratic setup.

The fundamental rights committee of the Constituent Assembly said there must be no executive interference in elections to legislatures. Its members unanimously affirmed that this was of utmost importance in the interests of “purity and freedom of elections” and agreed that such non-interference should be a fundamental right. As chair of the drafting committee, BR Ambedkar, the first law minister, moved this provision to a separate chapter.

Again, in TN Seshan vs UoI, the Supreme Court said, “…[the] appointment of persons who are allegiant to the ruling establishment compromises the independence of the commissions and citizen’s right to free and fair elections.”

NHRC Appointment and Constitutional Ethics

The NHRC was formed in 1993 as a response to the international commitment to protect human rights. Forget judicial ethics and independence, its appointment of Justice Arun Mishra (retd.) as Chairman raises ethical questions first. He stood accused of forcing a disabled litigant to walk to his podium, a memorable act of unkindness, but he will head the leading human rights body in India. This contradiction aside, and barring a few exceptions, the political nature of appointments to the NHRC have earned it the moniker of a “toothless tiger”.

The situation is aptly described by Madhav Khosla , Professor of Political Science at Ashoka University and Milan Vaishnav, Senior fellow South Asia Programme at Carnegie endowment for international peace in their January paper, “The Three Faces of the Indian State”. They write about the “three manifestations of India’s new constitutionalism—the ‘ethnic state,’ the ‘absolute state,’ and the ‘opaque state’.” They say these are “distinct, yet overlapping” faces of the Indian state and they have “undermined the rule of law, equal citizenship, checks and balances, and democratic accountability.”

The appointments of the NHRC members and chairperson reminds of their critique, for the process is supposed to be consultative and transparent, but the government of India neither released an advertisement seeking applications nor placed the assessment criteria in the public domain. Further, the appointment must conform with the Paris Principles, which say that the chairperson, members and staff should represent a pluralistic system. Currently, the appointment has been made by the President based on recommendations from a committee consisting of the Prime Minister, the Lok Sabha Speaker, the Home Minister, the leaders of both houses of Parliament and the Deputy Chairperson of the Rajya Sabha. Earlier, the chairmanship was reserved for retired chief justices of the Supreme Court, however, through an amendment to the Protection of Human Rights Act, 1993, the BJP led government changed it to include retired Supreme Court judges as well. Since the procedure also involves consulting the Leader of Opposition, that poses a unique conundrum in the context of the present government?

The Constitution does not explicitly recognise the office of a Leader of Opposition in the Lok Sabha. Instead, it is a statutory office provided for in section 2 of the Salary and Allowances of the Leaders of Opposition in the Parliament Act, 1977. It says that the Leader of the Opposition in either House of Parliament is “a member of the Council of States or the House of the People…who is, for the time being, the Leader in that House of the party in opposition to the Government having the greatest numerical strength and recognised as such by the Chairman of the Council of States or the Speaker of the House of the People…”

The law says the Speaker has to recognise the Leader of Opposition, however, the Speakers, mysteriously and in the garb of the 10 per cent rule. Issued by the first Speaker of the Lok Sabha, GV Mavalankar, this rule says that to be recognised as a legislature party, a party should have at least one-tenth of the strength of the House. The direction, however, is limited to the party, and not to the post of the Leader of Opposition.

Although in the appointment of Justice Arun Mishra, the panel did include the Leader of Opposition Mallikaarjun Kharge, it did not pay heed to his dissent. In effect, this makes Mishra a choice of ruling-party members and the Prime Minister.

As Sujith Choudhary, founder of Center for Constitutional transitions, discusses in his recent paper that populist leaders, once in power, view themselves as the “only ‘good’ representative of the people”. They delegitimize and destroy the opposition party and declare their domestic competitor as illegal and put an end to the fair chance. Has the current Indian regime portrayed itself as the “only good representative”? That is a question that begs only one ‘good’ answer!

Blow to Institutions

Fourth branch institutions are a post-constitutional development. So, barring a few they do not have constitutional status. However, unlike the Indian Constitution, chapter 9 of the South African constitution does recognise them as “state institutions supporting constitutional democracy”, including the electoral commissions and the South African Human Rights Commission. In the Indian context, apart from the Election Commission, NHRC, the statistical office (NSSO) and the information commissions are fourth-branch institutions.

Prof Tarunabh Khaitan , Vice Academic Dean at Faculty of law Oxford University argues these are not typical bodies, dominated by the majority party or executive or legislature. These institutions, unlike the judiciary, may perform functions other than dispute resolution and can be “guarantor branches or institutions”. Such a body is constituted to sufficiently guarantee a specific constitutional norm (or an aspect of it) by making it credible that the norm in question will be respected, protected or fulfilled over time.

These two appointments in India to the fourth-branch institutions, along with the recent amendments in the RTI Act, the curbing of space for discussion in universities, the bulldozing of bills in Parliament, the shrinking space for opposition and the corporate-politico controlled media made the case for independence and developments of these institutions weak. In the “world’s largest democracy”, giving Constitutional status to these institutions and recognising the rights of the Opposition through statutory means can strengthen democracy.

Rajesh Ranjan and Priya Jain run a project on constitutional engagement and literacy through Constitution connect. The views are personal.