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Insights into Editorial: Act now, recast the selection process of the ECs

Context:

The attendance of the Chief Election Commissioner (CEC) and his Election Commissioner (EC) colleagues at an “informal” meeting with the Principal Secretary to the Prime Minister has brought renewed focus on the independence and impartiality of the Election Commission of India (ECI).

The CEC’s initial hesitation when “summoned” was appropriate given that the ECI is a constitutionally mandated body that should maintain distance from the Executive, in perception and reality.

 

Importance of Election Commission of India (ECI):

  1. The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
  2. The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
  3. It is not concerned with the elections to panchayats and municipalities in the states. For this, the Constitution of India provides for a separate State Election Commission.
  4. Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc of the commission and the member.

 

Appointment & Tenure of Commissioners:

  1. The President appoints CEC and Election Commissioners.
  2. They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
  3. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court (SC) of India.

 

Present Limitations of ECI:

  1. The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
  2. The Constitution has not specified the term of the members of the Election Commission.
  3. The Constitution has not debarred the retiring election commissioners from any further appointment by the government.
  4. They can resign anytime or can also be removed before the expiry of their term.
  5. The CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament.

 

Challenges faced by Election Commission:

 

  1. Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.
  2. Election Commission is not adequately equipped to regulate the political parties. It has no power in enforcing inner-party democracy and regulation of party finances.
  3. ECI is becoming lesser independent of the Executive which has impacted its image.
  4. Allegations of EVMs malfunctioning, getting hacked and not registering votes, corrodes the trust of the general masses in ECI.

 

Judiciary overview on appointment process:

The Supreme Court had recognised that “Election Commission is not only responsible for conducting free and fair elections but it also renders a quasi-judicial function between the various political parties including the ruling government and other parties.

In such circumstances the executive cannot be a sole participant in the appointment of members of Election Commission as it gives unfettered discretion to the ruling party to choose someone whose loyalty to it is ensured and thereby renders the selection process vulnerable to manipulation.”

 

Various committees’ recommendations:

In 1975 itself, the Justice Tarkunde Committee recommended that ECs be appointed on the advice of a Committee comprising the Prime Minister, Lok Sabha Opposition Leader and the Chief Justice.

This was reiterated by the Dinesh Goswami Committee in 1990 and the Law Commission in 2015.

The 4th Report (2007) of the Second Administrative Reforms Commission additionally recommended that the Law Minister and the Deputy Chairman of the Rajya Sabha be included in such a Collegium.

 

Suggestion: Changes in the appointment process for ECs:

  1. Three Writ Petitions are urging the Supreme Court to declare that the current practice of appointment of ECs by the Centre violates Article 14, Article 324(2), and Democracy as a basic feature of the Constitution.
  2. These petitions argue for an independent system for appointment of ECs, as recommended by previous Law Commission and various Committee reports.
  3. Given that ECI is the institutional keystone holding up the edifice of Indian democracy, Experts suggest that changes in the appointment process for ECs can strengthen ECI’s independence, neutrality and transparency.
  4. The appointment of ECs falls within the purview of Article 324(2) of the Constitution, which establishes the institution.
  5. Pertinently, it contains a ‘subject to’ clause which provides that both the number and tenure of the ECs shall be “subject to provisions of any law made in that behalf by Parliament, be made by the President.”
  6. This ‘subject to’ clause was introduced, in the words of B.R. Ambedkar, to “prevent either a fool or knave or a person who is likely to be under the thumb of the Executive.”
  7. It was left to Parliament to enact legislation regarding the appointment of ECs.
  8. Apart from enacting a law in 1989 enlarging the number of ECs from one to three, Parliament has so far not enacted any changes to the appointment process.
  9. In the face of legislative inaction, there is now a possibility that the judiciary will force parliament’s hand.

 

Way Forward:

Parliament would do well to pre-empt judicial strictures by going ahead and formulating a law that establishes a multi-institutional, bipartisan Collegium to select ECs.

Separation of powers is the gold standard for governments across the world. ECI’s constitutional responsibilities require a fair and transparent appointment process that is beyond reproach, which will reaffirm our faith in this vital pillar of our polity.

The existing veil over the appointment process of ECs potentially undermines the very structure on which our democratic aspirations rest.

 

Conclusion:

Hence, establishing a multi-institutional, bipartisan committee for fair and transparent selection of ECs can enhance the perceived and actual independence of ECI.

Such a procedure is already followed with regard to other Constitutional and Statutory Authorities such as the Chief Information Commissioner, Lokpal, Vigilance Commissioner, and the Director of the Central Bureau of Intelligence.

The quasi-judicial nature of ECI’s functions makes it especially important that the appointments process conform to the strictest democratic principles.