The Indian republic is currently witnessing a turn of events that shakes the very foundations of our democratic structure and constitutional ethos. The Election Commission of India (ECI) and particularly the Chief Election Commissioner (CEC) are facing allegations that they are playing in the hands of ruling party and are giving it undue favour. What began in the name of “purifying” the electoral rolls, has now become synonymous with “vote chori” or vote theft. So far, nationwide, nearly 13 crore voters have been deleted from the electoral rolls.There may be many questions, but primary is whether the ECI is following the will of the makers of our constitution. For this we have go back to the year 1949 when the Constituent Assembly was debating on the subject of the electoral rolls and the role of the CEC.The Constituent Assembly debated in detail on these particular issues on January 8 and June 15, 1949. Several members voiced their concerns on the draft tabled in the House. Dr. B.R. Ambedkar addressed their concerns one by one. His words became the custodians of the constitution’s will.The January 8, 1949 debate was mostly focused on the making of electoral rolls. In this debate Ambedkar was asked whether, given that the vast majority in the country was illiterate, it was really justified to ask the voter for documents or to fill up the forms.Ambedkar replied,”My amendment for the addition of the words “or makes” meets the criticism that has been made that there are many people who are illiterate, who may not be in a position to sign an application and file it before a particular officer. The addition of the words “or makes” permits an oral declaration to be made either before a District Magistrate or before an officer who is preparing the electoral rolls. I think that objection is fairly met.”He further explained,“Therefore, if persons who are entitled to be voters in the electoral rolls on the basis of their single solitary qualification which we have, viz., his being a man of 21 years of age on the 1st January 1949 and if the election takes place in the year 1950 on some date not possible to prescribe, I think it cannot be said that the electoral roll will be a stale roll.”Ambedkar’s reply makes it clear that under Indian charter, attaining 21 years of age (now 18 years) is the sole sufficient eligibility to cast a vote in India. He also made it clear that oral declaration before an election officer is sufficient to get voting rights. The current SIR’s insistence on demanding multiple documents and then mandating their mapping against the 2003 electoral roles goes completely against the will of our Constitution.Readers must remember that at the start of the SIR process, ECI said that if booth level officers (BLOs) are satisfied with a voter’s declaration, they will be enrolled to the voter list. ECI’s approach gave unlimited power to a BLO. However, this further elevated the risk that the state machinery may act arbitrarily in preparing the voting lists. On June 15, 1949, Ambedkar also addressed this issue.”It has been brought to the notice both of the Drafting Committee as well as of the Central Government that in these provinces the executive Government is instructing or managing things in such a manner that those people who do not belong to them either racially, culturally or linguistically, are being excluded from being brought on the electoral rolls.”Describing the importance of voting right, he said:“The House will realise that franchise is a most fundamental thing in a democracy. No person who is entitled to be brought into the electoral rolls on the grounds which we have already mentioned in our Constitution, namely, an adult of 21 years of age, should be excluded merely as a result of the prejudice of a local Government, or the whim of an officer. That would cut at the every root of democratic Government.”To give every Indian citizen an equal opportunity to cast his vote, he said,“…to prevent injustice being done by provincial Governments to people other than those who belong to the province racially, linguistically and culturally, it is felt desirable to depart from the original proposal of having a separate Election Commission for each province under the guidance of the Governor and the local Government.”This shows that the makers of our constitution were fully aware that the executive may misuse the electoral rolls in their favour. On a question that people of unsound mind should be kept out of voter list, Ambedkar categorically warned:”…to give the authority to a village Patwari not to enter a certain person in the electoral roll because he thinks that he is of unsound mind is really to elevate a cabin boy to the position of the captain of a ship, and I think it is not possible to accept such an amendment.”This shows that our constitution was dreaming of an inclusive voter list, with least interference of the executive, and that’s why the makers dreamed of an independent Election Commission.The independence of the Election Commission Given these requirements, it became necessary that the task of preparing electoral rolls and holding free and fair elections could not be left to the Union or state governments. It was decided that only an independent Election Commission can do this. The makers of the constitution were keen on free and fair elections and they even proposed to keep it in the list of Fundamental Rights. Referring to this, Ambedkar said:“The House will remember that in a very early stage in the proceedings of the Constituent assembly, a Committee was appointed to deal with what are called Fundamental Rights. That Committee made a report that it should be recognised that the independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be regarded as a fundamental right and provided for in the chapter dealing with Fundamental Rights.”He added:“But the House affirmed without any kind of dissent that in the interest of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. In pursuance of the decision of the House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing article 289, 290 and so on.”The initial draft suggested that the CEC should be appointed by the president of India. As the post of president is a ceremonial one, it was clear that, for all practical purposes, they would be appointed by the prime minister. Pointing to this lacuna, Shibban Lal Saxena said:“What is desired by my amendment is that the Election Commission shall be completely independent of the Executive. Of course it shall be completely independent of the provincial Executive but if the President is to appoint this Commission, naturally it means that the Prime Minister appoint this Commission. He will appoint the other Election Commissioners on his recommendations. Now this does not ensure their independence. Of course once he is appointed he shall not be removable except by 2/3rd majority of both the Houses. That is certainly something which can instil independence in him, but it is quite possible that some party in power who wants to win the next election may appoint a staunch party-man as the chief Election Commissioner. He is removable only by 2/3rd majority of both Houses on grave charges, which means that he is almost irremovable.”This is the exact situation we are facing today. The charges against Gyanesh Kumar, the CEC, are similar: that he is working as a party-man.To avoid this, Saxena suggested:“So what I want is this that even the person who is appointed originally should be such that he should be enjoying the confidence of all parties-his appointment should be confirmed not only by majority but by two-thirds majority of both the Houses. If it is only a bare majority then the party in power could vote confidence in him but when I want2/3rd majority then it means that the other parties must also concur in the appointment so that in order that real independence of the commission may be guaranteed, in order that everyone even in Opposition may not have anything to say against the Commission, the appointments of the Commissioners and the chef Election Commissioner must be by the President but the names proposed by him should be such as command the confidence of two-thirds majority of both the Houses of Legislatures. Then no person can come in who is a staunch party-man. He will necessarily have to be a man who will enjoy the confidence of not only one party but also of the majority of the members of the Legislature.”The suggestion of Saxena was sound, but a Congress member, Mahavir Tyagi, making a jibe at his government, said, “You are having more than two-thirds majority already.”Saxena’s reply to Tyagi was such that it still defines the state of affairs today. He said:“At this time nothing will help in this matter. Whosoever you put forward will be elected. But we are making a Constitution for ever and not only for today. Today of course whosoever is appointed by the president on the recommendation of the Cabinet will be approved. We are lucky in having as our Prime Minister (Pt Jawahrlal Nehru) a man of independence and impartiality and he will see that a proper person is appointed. But we can not sure that the Prime Minister will always be such a personality. I want that in future, no Prime Minister may abuse this right, and for this I want to provide that there should be two-thirds majority which should approve the nomination by the President.”He further said:“Of course there is danger where one party is in huge majority. As I said just now it is quite possible that if our Prime Minister wants, he can have a man of his own party, but I am sure he will not do it. Still if he does appoint a party-man and the appointment comes up for confirmation in a joint session, even a small opposition or even a few independent members can down the Prime Minister before the bar of public opinion in the world. Because we are in a majority we can have any thing passed only theoretically. So the need for confirmation will invariably ensure a proper choice.”He said:“Therefore, I hope this majority will not be used in a manner which is against the interests of the nation or which goes against the impartiality and independence of the Election Commission. I want that there should be provision in the constitution so that even in the future if some Prime Minister tends to partial, he should not be able to be so. Therefore, I want to provide that whenever such appointment is made, the person appointed should not be a nominee of the President but should enjoy the confidence of two-thirds majority of both the Houses of Parliament.”Replying to these questions on June 16, 1949, Ambedkar said:“Now with regard to the question of appointment I must confess that there is a great deal of force in what my Friend Professor Saksena said that there is no use making the tenure of the Election Commissioner a fixed and secure tenure if there is no provision in the Constitution to prevent either a fool or a knave or a person who is likely to be under the thumb of the Executive. My Provision—I must admit–does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioner. I do want to confess that this is a very important question and it has given me a great deal of headache and I have no doubt about it that it is going to give this House a great deal of headache.”And after 76 years of that debate, the same ‘headache’ is being felt by the Indian republic by its CEC.Ambedkar didn’t have an exact solution to fix the problem, but he suggested:“If the House rejects the proposal of the Drafting Committee that there should be an Instrument of Instructions to the President which might include, among other things, a provision with regard to the making of appointments this problem would then be solved by that method. But, as I said, it is quite difficult for me to anticipate what may happen.”A lot of water has flowed under the bridge since then. A lot of provisions have been made to secure the independence of the ECI and CEC. These include appointing two additional Election Commissioners along with the CEC. The Supreme Court had mandated that the panel appointing the CEC should include the prime minister, the Leader of the Opposition, and the Chief Justice of India; the Modi government overturned the court’s verdict.Today, the country has a CEC who brings back all the fears that the constitution’s framers once harboured. Now things are running contrary to the very guidelines the framers laid out for preparing electoral rolls. We are witnessing the exact constitutional hardball that Ambedkar and other members of the Constituent Assembly were worried about.Piyush Babele is a senior journalist and the author of the acclaimed books Nehru: Mithak aur Satya and Gandhi: Siyasat aur Sampradayikta. He has also served as a media advisor to the Madhya Pradesh Congress Committee.For our full coverage on the SIR and the issues it has brought to citizens, click here.