EDITORIAL ANALYSIS : The Election Commission — autonomy in the crosshairs - INSIGHTS IAS

Prelims: Current events of national importance(ECI, CEC, Article 324, PIL, constitution bench etc)

Mains GS Paper II: Appointments to various constitutional posts, powers functions and responsibilities of various constitutional bodies etc

ARTICLE HIGHLIGHTS

The Supreme Court in a judgment directed that the Chief Election Commissioner (CEC) and the Election Commissioners (EC) will be appointed by the President of India
- On the advice of a committee made up of the
  - Prime Minister
  - Leader of the Opposition in the Lok Sabha or the leader of the single largest Opposition party
  - Chief Justice of India (CJI)

INSIGHTS ON THE ISSUE

Context

Election Commission of India(ECI):

The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
The body administers elections to:
- Lok Sabha
- Rajya Sabha
- State Legislative Assemblies in India
- Offices of the President and Vice President in the country.
Part XV of the constitution deals with elections, and establishes a commission for these matters.
Article 324 to 329: deals with powers, function, tenure, eligibility, etc of the commission and the members.
The commission: It consists of one Chief Election Commissioner and two Election Commissioners.
The President appoints Chief Election Commissioner and Election Commissioners.
Tenure: They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
Status: They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge by Parliament.
All three members have equal voting rights and all decisions in the commission are taken by the majority,

Procedure For Removal

He/she can be removed either on the ground of “proved misbehavior or incapacity”.
Resolution: He/she can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority(majority of two-third members present and voting supported by more than 50% of the total strength of the house).
The Constitution does not use the word ‘impeachment’, for the removal of the Chief Election Commissioner.
The Election Commissioner or Regional Commissioner: They can only be removed from office by the Chief Election Commissioner.

Article 324:

The Superintendence, direction and control of elections to be vested in an Election Commission.

Functions of EC:

Supreme Court Judgement:

It ruled that a panel comprising
- Prime Minister (PM)
- Leader of the Opposition (LoP)
- Chief Justice of India
- They shall appoint CEC and ECs until Parliament brings a law
The court said that the purity of the election process must be maintained to preserve democracy, else it “would lead to disastrous consequences”.
The presence of the CJI is required to usher in impartiality and insulate the appointment process from the Executive’s interference.
The SC verdict had maintained that the CJI’s presence could quell the executive’s unchecked and unaccounted-for hold over appointments, as all governments will want “yes men in the poll panel

What does the bill say?

It seeks to replace the CJI with a Cabinet Minister nominated by the Prime Minister.
The Bill seeks to replace the Chief Justice of India from the high-powered selection committee.
- The committee will be made up of the
  - Prime Minister (Chairperson)
  - Leader of the Opposition in the Lok Sabha (Member)
  - Union Cabinet Minister to be nominated by the Prime Minister (Member).
- It proposes a search committee: headed by the Cabinet Secretary, with two other members not below the rank of secretary to the government, to prepare a panel of five members for the consideration of the Selection Committee.
- The CEC and other ECs will be appointed from “amongst persons who are holding or have held a post equivalent to the rank of secretary
  - They shall be persons of integrity, who have knowledge of and experience in the management and conduct of elections”.
  - There was no rule prescribing the qualifications for appointment to the posts.
- It seeks to protect the two Election Commissioners from removal, bringing them on par with the CEC.
  - They can be removed through a process of impeachment like a SC judge.
- The Commissioners, who were equated with SC judges since the Act of 1991, are being downgraded.
  - While the salary of the EC then and now is the same as that of CS (and the SC judge)
  - The rank in the warrant of precedence is being reduced.

What are the issues with the current process?

The current selection process — by the President on the advice of the PM and the Cabinet — does a grave disservice to newly appointed ECs.
The institutional actions carried out in good faith and in the course of their duty are often projected as one favoring a particular party.

Constituent Assembly Debates:

The appointment of the CEC should be subject to confirmation by two-thirds majority in a joint session of both Houses of Parliament
Parliament was entrusted with the charge of making appropriate laws on the matter.

Recommendations by different committees and people:

M. Tarkunde Committee
Dinesh Goswami Committee
The Second Administrative Reforms Commission in its fourth report(2009)
- They made recommendations that the appointments of members of the ECI should be more broad based (through a collegium) than leaving this solely to the government on whose advice the President made these appointments.
Former CEC(B.B. Tandon): A seven-member committee headed by the Prime Minister should choose the CEC and the other ECs.
- The committee should include
  - Lok Sabha Speaker
  - Leaders of the Opposition in the Lok Sabha and the Rajya Sabha
  - Law Minister
  - Deputy Chairperson of the Rajya Sabha
  - A judge of the Supreme Court nominated by the CJI.
- Former Deputy Prime Minister(L.K. Advani): A collegium should be formed with the
  - Prime Minister as its chairman
  - CJI
  - Minister of Law and Justice
  - Leaders of the Opposition in the Lok Sabha and the Rajya Sabha as its members.

Need for autonomy:

Maintaining the EC’s institutional autonomy is urgent in the current national and international context.
There has been an increasing global erosion of trust in electoral institutions.
According to the Gallup World Poll: Only 50 percent of voters are reported to have confidence in the honesty of elections
- USA: the figure in 2019 stood at 40 per cent.
The EC’s credibility is increasingly being called into question: The allegations of bias in the scheduling of elections and arbitrary deletion of names of registered voters, ignoring blatant violations of the model code.
The recent democracy reports of the V-Dem Institute: It highlights that various indicators of democracy in India, including the autonomy of the ECI, have been declining.

Way Forward

Interestingly, all these high-level committees, experienced officers and other leadership saw the importance of this and recommended that the CJI or a judge appointed by him/her should be a part of this committee;
The effort was to curb ECI from becoming a ‘committed’, partisan and an incumbent-friendly entity.
The ECI has been held to be a reliable, responsible and trustworthy institution by the people of India.
- Handling elections that involve about 900 million voters (2019 election data) through a machinery of 11 million personnel in a setting of economic hardship and inequalities is a remarkable feat.
- However, going soft on the ruling party or its ideology, as the perception is, whether this has to do with
  - election schedules
  - electoral speeches
  - alleged hateful propaganda
  - electoral rolls or other kinds of malpractices
  - It is eroding not only its own autonomy but also people’s trust.
- The collegium system will be all the more credible if a unanimous verdict is added as a precondition to the appointment.
  - The choice should be limited to the five candidates shortlisted by the Cabinet Secretary-led committee.
- The Election Commission of India has for long been a shining symbol of democracy all over the world.
  - To consolidate this reputation, we must ensure all the safeguards are in place to quell the possibility of any question mark on its credibility and status.