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Act now, recast the selection process of the ECs

Published: 17th Jan, 2022

Context

According to reports, the Chief Election Commissioner (CEC) and his Election Commissioner colleagues have ‘attended’ an ‘informal’ meeting with the Principal Secretary to the Prime Minister

Background

  • Issue: The informal meeting has brought renewed focus on the independence and the impartiality of the Election Commission of India (ECI). 
  • Reason: ECI is a constitutionally mandated body that should maintain its distance from the Executive, in perception and reality.

What is the need to recast the selection process?

  • Due to Multiple accusations: The ECI has faced multiple accusations of favouring the ruling party. 
  • For instance, the 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. 
  • The Government was also accused of hounding (now former) Election Commissioner Ashok Lavasa when he favored taking action against the Prime Minister for violations of the electoral code of conduct.
  • Strengthening the institution: Changes in the appointment process for Election Commissioners can strengthen the ECI’s independence, neutrality, and transparency. The appointment of Election Commissioners falls within the purview of Article 324(2) of the Constitution, which establishes the institution. 
  • No change in the old structure: Pertinently, it 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”. 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.
  • Pending Petition: Three writ petitions, with one pending since 2015, is urging the Supreme Court to declare that the current practice of appointment of Election Commissioners by the Centre violates Articles 14, 324(2), and democracy as a basic feature of the Constitution. These petitions argue for an independent system for the appointment of Election Commissioners, as recommended by previous Law Commission and various committee reports.
  • Several recommendations: 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. 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.
  • Function of EC: 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 the 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”.

Suggestive measures

  • Forming a committee: 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. 
  • Similar to a procedure is already the Chief Information Commissioner, the Lokpal, the Central Vigilance Commissioner, and the Director of the Central Bureau of Investigation. 
  • The quasi-judicial nature of the ECI’s functions makes it especially important that the appointments process conform to the strictest democratic principles.
  • Law enacted by parliament: Parliament should do well to pre-empt judicial strictures by going ahead and formulating a law that establishes a multi-institutional, bipartisan Collegium to select Election Commissioners. 

Conclusion

The 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 Election Commissioners potentially undermines the very structure on which our democratic aspirations rest.

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