The recent Bill to regulate the appointment process of the Election Commission of India could be a great danger to democracy if it’s not struck down, believes Justice (Retired) Rohinton F Nariman, former Supreme Court judge and former Solicitor General of India.
“It was very crucial because if Election Commissioners happen to be partisan, then there is no free and fair election, and there is no democracy,” he said, responding to the Bill stating that a panel comprising the Prime Minister, Leader of Opposition and the Chief Justice of India (CJI) will appoint the Chief Election Commissioner (CEC).
Nariman lamented that the Bill to ‘subvert’ SC order was moved to the Rajya Sabha and is in danger of becoming an Act in no time. He foresees a situation where the CJI could be substituted by a minister appointed by the Prime Minister.
“If you are going to get the CEC and other election commissioners appointed in this fashion, free and fair elections will become a chimera. Where you have two from the executive, the PM and a minister against LoP which is 2:1 always and out goes the EC,” he was quoted as saying by The Indian Express.
“You (government) needed this because you wished to bypass a very, very important Article 356 (5) which essentially deals with circumstances in which there is a constitutional breakdown in the state and the centre takes over,” he said.
He suggested that for the CEC to become ‘independent,’ the body should have a five-year term and can be removed like an SC judge through an impeachment.
Nariman said that the present provision could be invoked if polls are not possible in the concerned state, and in two conditions, including the national emergency and election commission.
He also cited the recent judgment of the SC upholding abrogation of Article 370, calling it a disturbing feature. “We would have no democratic government in Jammu and Kashmir for five years till the elections which are supposed to be held in September, and the same could continue indefinitely,” he said.
Furthermore, he touched upon several issues, including how the media is bullied. Referring to the tax raids on the BBC office after it aired a documentary on Gujarat riots earlier this year, Nariman said, “The media is our watchdog, and if it is killed, then nothing remains.” He believed the tax raids should be termed “illegal and unconstitutional.”
He also recommended that the Supreme Court overrule the 2019 verdict in the B K Pavithra case decided in 2019, which held that there was no constraint on the Governor to refer every Bill to the President. Nariman believed that for the system to be back on track, only those Bills having impact on the nation or judiciary can be sent to the President.
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