The Supreme Court ruling devising a three-member committee to select the Chief Election Commissioner (CEC) and Election Commissioners (ECs) was a landmark judgment. The committee is going to consist of the Prime Minister, the Leader of Opposition in the Lok Sabha or the leader of the single largest party in the Lok Sabha, and the Chief Justice of India (CJI). Till now, these Commissioners have been appointed by the President (on the advice of the Council of Ministers).
This new system will be in force until Parliament enacts a law for selection of Election Commissioners. The objective of the judgement is to secure the independence of the Election Commission from the government of the day.
The Executive’s Long Shadow
The Constituent Assembly discussed the issue of ensuring that the election mechanism was independent of the executive government. The framers were cognisant of the risks of having the mechanism being controlled by the party in power, and therefore, opted to create an Election Commission of India as a constitutional body. They also discussed ways to ensure that the election commissioners maintain their independence.
There are three stages at which the government could affect the independence of high officials:
* At the time of appointment
* During their tenure by affecting the conditions of service or by premature termination
* And by providing inducements after the term ends.
Let us take the example of judges of the Supreme Court. The Constitution explicitly provides security of tenure (by placing a very high bar for removal) and conditions of service. The Supreme Court subsequently interpreted the Constitution to place the selection process in the hands of a collegium of senior judges. However, there is no bar or cooling period for post-retirement positions such as being appointed as a Governor or being nominated or elected to Parliament.
Safeguarding Election Commission
The Constitution provides the security of tenure of the CEC by requiring that removal would need the same process as for a judge of the Supreme Court. Conditions of service are also protected. In the case of appointments, there was a lively debate in the Constituent Assembly.
One member suggested that the election commissioners be confirmed by a two-thirds majority in a joint session of both Houses of Parliament. The Assembly decided to authorise Parliament to make a law, with the President appointing the Commissioners until then. Parliament has, till date, not enacted a law regarding the appointment process. It is this gap that the Supreme Court is attempting to fill.
In the last three decades, several committees such as the Dinesh Goswami Committee, the National Commission to Review the Working of the Constitution (NCRCW), the second Administrative Reforms Commission, and the Law Commission have examined the issue and recommended selection committees for this purpose. However, none of these recommendations have been implemented.
Supreme Court’s Interpretation
The core argument of the Supreme Court judgement is that free and fair elections are central to democracy. The Election Commission headed by the CEC and other ECs have been tasked with managing the process of holding elections, and given wide powers to do so. Thus, it is essential that they are independent of the executive, as the party in power would usually be a participant in the next election.
This would require that the process of selection to these posts not be in the sole hands of the executive government. Thus, it has formed a committee with the leaders of the government and the opposition, and the CJI who is a neutral party. This structure balances the political interests, and has a precedent in the selection process of heads of an investigative agency such as the Central Bureau of Investigation.
That said, including the CJI in the committee may open up other problems. The CJI is now a party to the selection process, which may have political implications. Further, in case of a legal challenge, other judges may find it difficult to review a decision taken by a committee including the CJI.
Alternatives For Parliament
It may have been better to broad-base the selection committee without including the judiciary. For example, the NCRCW in 2002 suggested a committee consisting of the Prime Minister, the Leaders of Opposition in the two Houses of Parliament, the Speaker of Lok Sabha and the Deputy Chairman of Rajya Sabha.
In sum, it is of the utmost importance that the CEC and the ECs are non-partisan. It is also essential for continued faith in our democracy that the citizenry sees the election commission as a politically neutral body. The Supreme Court judgement moves towards this goal.
Parliament needs to debate this issue and make an appropriate law. It may also be useful to examine the process of appointing other constitutional authorities that perform an oversight role, such as the Comptroller and Auditor General.
MR Madhavan is the President and Co-Founder of PRS Legislative Research. Views are personal and do not represent the stand of this publication.