Selection of Election Commissioner

• IAS NEXT, Lucknow
• 14, Jan 2022

Context:

Some of the recent allegations & events has brought renewed focus on the independence and the impartiality of the Election Commission of India (ECI). 

What are the charges levelled? 

• Accusations of favouring ruling party: Over the last seven years, the ECI has faced multiple accusations of favouring the ruling dispensation. For example, during the 2019 Lok Sabha Elections, the EC under Chief Election Commissioner Sunil Arora gave a clean chit to PM Narendra Modi, who in an election rally in Latur, had referenced his campaign with an appeal on behalf of the armed forces. 
• Allegations of inaction: Citizens’ Commission on Elections (CCE), chaired by the retired Supreme Court judge, Justice Madan B. Lokur, in its report titled “An Enquiry into India’s Election System”, has highlighted several instances of inaction on the part of the ECI while conducting the 2019 general election. 
• Pandemic & Elections: In 2021, the Commission’s delayed decision in banning election campaigns in the midst of a rampaging pandemic, raised eyebrows. Eventually, when they banned rallies and public meetings of over 500 people, the decision came a day after Mr. Modi cancelled his four scheduled rallies
• Informal meeting with Principal Secretary to PM: CEC and ECs attended an ‘informal’ meeting with the Principal Secretary to the Prime Minister, in Dec 2021. It has raised questions about the neutrality of the Commission, especially when elections to crucial States are around the corner. 
  • The CEC’s initial hesitation when ‘summoned’ was appropriate given that the ECI is a constitutionally mandated body that should maintain its distance from the Executive, in perception and reality.

What are the provisions for appointment of Election Commissioners?

• Constitutional Status: The appointment of Election Commissioners falls within the purview of Article 324(2) of the Constitution, which establishes the institution. 
• ‘Subject to’ Clause: Article 342 contains a ‘subject to’ clause which provides that both the number and tenure of the Election Commissioners shall be “subject to the provisions of any law made in that behalf by Parliament, be made by the President”.
  • This ‘subject to’ clause was introduced, in the words of Dr. B.R. Ambedkar, to “prevent either a fool or knave or a person who is likely to be under the thumb of the Executive”. 
• Legislative Inaction: It was left to Parliament to enact legislation regarding the appointment of Election Commissioners. Apart from enacting a law in 1991, which was subsequently amended to enlarge the number of Election Commissioners from one to three, Parliament has so far not enacted any changes to the appointment process. 

Why judiciary should act now?

• In the face of legislative inaction, there is now a possibility that the judiciary will force Parliament’s hand. 
• Three writ petitions, with one pending since 2015, are urging the Supreme Court to declare that the current practice of appointment of Election Commissioners by the Centre violates Articles 14, 324(2).
• These petitions argue for an independent system for appointment of Election Commissioners, as recommended by previous Law Commission and various committee reports.
• In 1975, the Justice Tarkunde Committee recommended that Election Commissioners be appointed on the advice of a committee comprising the Prime Minister, the Lok Sabha Opposition Leader and the Chief Justice of India. 
• This was reiterated by the Dinesh Goswami Committee in 1990 and the Law Commission in 2015. 
• The Fourth Report 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.

What is the argument behind recommending the change in appointment process?

• The Executive’s role in the current appointment process has come under judicial scrutiny over its lack of transparency. 
• The pending writ petitions argue that the 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. 

• Accordingly, the Executive cannot be a sole participant in the appointment of members of Election Commission as it renders the selection process vulnerable to manipulation.
• Hence, establishing a multi-institutional, bipartisan committee for the fair and transparent selection of Election Commissioners can enhance the perceived and actual independence of the ECI. 
• Such a procedure is already followed with regard to other constitutional and statutory authorities such as the CIC, the Lokpal, CVC, and the Director of CBI.

Way Forward

• The existing opaqueness over the appointment process of Election Commissioners potentially undermines the very structure on which our democratic aspirations rest.
• Parliament would do well by formulating a law that establishes a multi-institutional, bipartisan Collegium to select Election Commissioners. 
• Separation of powers is the gold standard for governments across the world. Therefore, ECI’s constitutional responsibilities require a fair and transparent appointment process that is beyond doubt.