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Election Commissioner shouldn’t be a ‘yes-man’: Supreme Court

GS Paper 2

Syllabus: Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies

 

Source: TH

 Direction: The article adds points to yesterday’s previous article, highlighting why ECI needs reforms and is way ahead.

 Context: According to the Supreme Court, an Election Commissioner should be someone who can take a stand even if it means sacrificing his/her life, rather than a passive “yes-man.”

 Why are reforms in the system required?

  • The Election Commission of India (ECI) has earned public trust due to its exemplary work as an independent and neutral authority.
  • This achievement has been made possible because as a constitutional authority, the ECI’s autonomy is guaranteed and its functioning insulated from the interference of the executive and judiciary.
  • However, there is growing concern on that front. For example,
    • The CEC and the two commissioners joined an online interaction called by the Prime Minister’s Office (PMO)
    • The panel imposed Covid restrictions on electioneering only after the PM completed his campaign
    • ECI’s unwillingness to censure the ruling party’s leaders for violating the Model Code of Conduct while pulling up Opposition leaders during the 2019 general election.

 What has the SC said about the Election Commissioners (EC)?

  • The Constitution of India has vested vast powers on the shoulders of the CEC and the 2 Election Commissioners.
  • Apart from competence, character is crucial, so that those appointed as Election Commissioners will not allow themselves to be bulldozed.
  • The government does not give much importance to ECs’ independence, as evidenced by the reduction in tenures of Chief Election Commissioners (CECs) from over 8 years (in 1950s) to just a few 100 days (after 2004).
  • The government assures that the person nominated does not serve the full six years by picking someone close to 65, thus undermining independence.
  • In the absence of a law to oversee such appointments, the silence of the India Constitution is being exploited by all.
  • If ECs become CECs, then there is no independent mechanism to consider persons other than ECs for the post of CEC.
  • The court gave the government 24 hours to produce the file of appointment of former IAS officer Arun Goel as EC, to know the mechanism followed for making this appointment.
    • Arun Goel, a former IAS officer from the Punjab cadre, is set to succeed Rajiv Kumar as CEC when his term expires in 2025.

 

The government’s reply:

  • Appointment on the basis of a time-tested convention:
    • A list of serving and retired officials in the position of Secretaries is prepared for consideration of the Prime Minister and President.
    • The PM, after considering the names, recommends one name to the President, along with a note.
    • The appointment of ECs follows seniority and the senior among the two ECs goes on to become the CEC.
  • There is no vacuum in the Constitution on the issue. If the Constitution takes a position despite discussions on multiple ideas in the Constituent Assembly, that position cannot be contested.
  • The separation of powers cannot be challenged, as it is the basic feature of the Constitution.
  • Independence of the executive was as sacrosanct as the independence of the judiciary. This matter is for Parliament to debate and not the court.
  • Except for a few odd cases, there had been no complaints about the Election Commission’s independence, and its work had even won worldwide fame.

 

Suggestions given by the SC:

  • An appointment committee including the Chief Justice of India (CJI) to appoint the Election Commissioners to ensure neutrality.
  • According to experts, though the SC is correct in emphasising the need for the ECI to be protected from political pressure, the CJI’s participation on the appointment panel will provide that cover is a questionable assumption.
  • For example, the CJI is on the committee that picks the CBI director. Certainly, this does not safeguard the investigative agency’s independence, which is decided by the agency and the political administration.

 

Way ahead:

  • A CEC of the calibre of TN Sheshan is required to ensure free and fair elections and to strengthen democracy in India. Though such personalities appear occasionally, appointments based on merit can provide close to one.
  • There is no reason to change the arm’s length relationship, which the judiciary has respected and maintained with the ECI previously.
  • Allow Parliament to decide and debate whether to include the CJI or the Leader of the Opposition on the appointment panel.

  

Insta Links:

Appointment of Election Commissioners

 

Mains Links:

Q.  Critically analyse the role and powers of the Election Commission of India (ECI) in conducting free and fair elections. (250 words)