EXPECTING A TN SESHAN IN NAYA BHARAT IS A PIPE DREAM

   I guess, in these Orwellian times, we should be grateful for small mercies. Which is why we should be relieved that the five judge Constitution bench has finally taken up the issue of the independence of the Election Commission, seven years after various PILs were filed on the subject. One is also happy with the stern and questioning posture adopted by the bench, which too is a bit of a rarity these days. And one is not surprised at the govt's usual evasive, defiant, and talking-down stance, reiterating its old chestnut about separation of powers of the executive/ legislature and the judiciary. Separation of powers is a valid tenet only if these powers are exercised legitimately, as they were intended to be- if they are not, then the Courts are justified, nay required, to cross the Laxman Rekha and restore some semblance of constitutional rule.

  That the Election Commission is living on its past glory cannot be denied by any right thinking person; the only point to be debated is whether it is a vestigial appendage of the PMO or the Home Ministry. The strange scheduling of the Himachal and Gujarat elections, the silence on the questionable opening of an unscheduled window for Electoral bonds, the rushed appointment of an Election Commissioner- these are only the latest examples of its completely compromised status. It no longer enjoys the trust of the Opposition parties or vast swathes of the public, it maintains a silence like a Trappist monk on all criticism, it does not respond to the public or other stakeholders, it does not deign to explain any of its actions. 

  In the last couple of days at least two former Chief Election Commissioners have spoken out and have supported the Supreme Court's forensic investigation into the ECI's functioning. Mr. M. S. Gill and SY Quereshi have revealed that they had, in their time, taken up with the govt. of the day the issue of reforms in the procedure for appointment of Election Commissioners to ensure their independence. This issue was important then too, but right now it has become a make or break concern for the very survival of democracy for India. A few more years of this and we would be living the Stalin quote: the person who counts the vote is more important than the person who casts the vote. And the Supreme Court was perhaps also alluding to this danger when it invoked the tenure of the now legendary T.N.Seshan, CEC from 1990 to 1996, as a model and a benchmark. 

  T.N.Seshan was the stuff legends are made of. By his own confession at a press meet he "ate politicians for breakfast"; he made himself completely independent from the government, even asking the Law Ministry not to address letters to his office as " Election Commission of India, Govt. of India" as he was not part of the govt. but a separate entity; in August 1993 he issued a 17 page order deferring all elections till such time as the govt. gave him funds to implement the scheme of Voter ID cards ( he had his way); after the death of Rajiv Gandhi he postponed elections without consulting the central govt.; he put the fear of God into politicians, civil servants and polling staff. He gave full protection to his Observers and ensured they had the final word over the state satraps, and their reports were implemented immediately, without any long drawn inquiries ( which is the norm these days). I did three separate stints as Observer under him: on one occasion, having personally witnessed "booth capturing" at a couple of booths in Bihar, I recommended repolling: within two hours the orders arrived from Delhi. He introduced Voter ID cards, the Model Code of Conduct, the system of Election Observers, among other reforms. Seshan, in short, cleaned up much of the rot that had set in in the preceding forty years.

  But carbon dating the history of the Election Commision, or singing paeans to his memory is not the solution to the terminal decline in our electoral processes. The rot which has metastasized again in the 25 years after him cannot be cured by harking back to his days. Because the context has changed and the reality of today is vastly different from Seshan's days. The govts then were not brazenly contemptuous of the law, they were sensitive to public opinion and criticism by the press, the media still retained more than a modicum of courage and independence, the judiciary could still confront the state, constitutional bodies still had the respect and trust of the people, the bureaucracy had not yet been bludgeoned into compliance (notwithstanding Mrs. Gandhi's theory of a "committed" bureaucracy), the populace had not been turned into fawning zealots of an intolerant ideology. These were the strengths on which Seshan could draw on when standing up to the govt., not just his famous Palghat Brahmin obduracy. The vision, courage and initiative were his, but the eco-system supported him, giving him the confidence to persist. All that has changed now, especially in the last eight years. 

  That vital eco-system of checks and balances has all but collapsed, dismantled piece by piece in classic Gestapo fashion: compartmentalise the stakeholders into separate ghettos, and then demolish the ghettos one by one till all that is left is one huge wasteland. The ruling party appears almost unchallengeable, bolstered by a brute legislative majority, unlimited funds and a brutish cadre. It has no respect for, or fear of, any of the agencies or institutions mentioned in the previous para. This govt. has demonstrated time and again that it can make short work of any functionary- even judges- it finds inconvenient, or not compliant or submissive.

  Consider the manner of the midnight removal of the CBI (Central Bureau of Investigation) Director Alok Verma in 2019 when news emerged that he could file an FIR in the Rafael matter. Or how Election Commissioner Ashok Lavasa was hounded and forced to quit ( and allow himself to be kicked upstairs to the Asian Development Bank) when he started giving dissenting notes and recommending action against some BJP leaders for violation of the Model Code of Conduct. Or the punishment meted out to Sanjiv Bhatt, the Gujarat cadre IPS officer who had deposed against Mr. Modi and Shah in the 2002 riots case- he is now serving a life  sentence in a three decade old case for daring to speak out. Or R.B.Sreekumar, former Director General of Police, arrested ( along with Teesta Setalvad) for demanding accountability for the 2002 killings. These examples can be multiplied manifold, but they should suffice to prove that there are no Laxman Rekhas for this regime when it comes to throttling dissent or wreaking vengeance when exposed or thwarted in its designs. It does not fear any judicial intervention or check, as has been proved time and again.

  Could even somebody like T N Seshan have stood up to the unlimited powers of such an authoritarian state, in the kind of defenestrated eco-system that exists today? Would his integrity, commitment and courage have been enough to counter the CBI, ED (Enforcement Directorate), Income Tax, lap dog media and other agencies that would surely have been deployed against him in order to reign him in or to get rid of him? I doubt it.

  Which is why, though I welcome the inquisition of the five judge bench on the process of appointment of Election Commissioners, I don't expect much from it. The facade of having the CJI (Chief Justice of India) on the Selection Committee will be just that- a facade, a cosmetic job to hide the deficiencies underneath. Many CJIs of late have not covered themselves in glory, and the process of THEIR appointments is not much better than that of the Election Commissioners, either.

  The manner of appointment itself is meaningless if the executive can continue to bribe, coerce or intimidate a Chief Executive to either do its bidding or face the consequences. The CJI is on the panel for selection of the CBI Director but that did not prevent the organisation from turning thoroughly partisan and compliant; it also did not protect a Director from being evicted in a midnight coup when he tried to do his job. The Supreme Court has also not been able (or willing) to enforce its own orders in the matter of another Director of another agency getting a third extension of service in spite of the court putting a bar on it.

  It's high time (because time is running out) that we stopped fooling ourselves and grasped the nettle. The real problem is not the selection process ( which can certainly be improved upon) or the appointees. The problem is one of protecting the appointees from the tyranny of a government which will stop at nothing to have its way. Our failure lies here, and the fault lies with the higher judiciary, which is more concerned with protecting its own turf than the nation. Our courts have not been able to protect even one of the officers in the preceding paragraphs; in fact, they have usually ruled on the side of the executive, more concerned with technicalities than the larger picture. Further, the Supreme Court's reluctance to take up cases challenging some of the govt's controversial policies and decisions has only emboldened the executive to keep on pushing the envelope. In such a degraded system even T.N.Seshan would have been rendered ineffective and summarily evicted from the Commission to a rueful retirement, if not worse. In a democracy the judiciary is the final frontier, and if that too crumbles, then democracy cannot survive.

  This is not to say that we do not need a Seshan today: how can we not, in a country where the Home Minister can openly boast with total impunity at an election rally that the Gujarat pogrom of 2002 which saw the massacre of almost 2000 people was a "lesson" for a community, and where the Chief Justice of India shockingly admits that judges are "afraid" to grant bail? We desperately need a Seshan - but not just in the Election Commission: the country needs a TN Seshan in the Supreme Court.