Can something as crucial as the appointment of the Chief Election Commissioner (CEC) and his two colleagues be left at the mercy of the executive in these troubled times, particularly when the legislature and judiciary are at loggerheads?
The answer can never be in the affirmative.
In a Westminster system where first-past-the-post decides who forms a government, any sense of arbitrariness can be politically dicey. There can be no doubt that the current system of selecting the three-member election commission, headed by a CEC, needs reform. Recently-superannuated IAS officers, plainly do the bidding for the government, with no public accountability, whatsoever.
It becomes important, then, to figure out the mandate and scope of this august poll body, which is recognized throughout the democratic world for the sheer scale and efficiency of its operations. The election commission is, literally, the guardian of holding polls in the country. Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections to parliament, state legislatures, the offices of the president of India, and the vice-president, shall be vested in it. Thus, it is an all-India body in the sense that it is common to both the central government and the state governments.
Operating under the authority of the Representation of People Act, it is empowered to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election. Being a constitutional authority, the EC is amongst the few institutions which function with both autonomy and freedom, along with the country's higher judiciary, the Union Public Service and the Commission and the Comptroller and Auditor General (CAG).
In reality, however, such vast overweening powers that the Commission is armed with, could, on occasions, well be illusory, if its selection process is flawed and packed with time servers. Last November, the Supreme Court upbraided the government, candidly stating that it pays mere lip-service to the independence of the election commissioners.
Justice KM Joseph, heading a five-judge Constitution Bench, was rather blunt. "Their (CECs) tenure is highly truncated and known from the very beginning," he said, adding that the previous Congress-led UPA government had six CECs in just eight years, but "after the present government took over, from 2015 to 2022, for seven years, we have had eight CECs."
For good measure, he observed that a committee including the Chief Justice of India (CJI) may be the least intrusive way of appointing ECs.
A close look at the tenures of election commission members would reveal -- alarmingly -- that some of them have not even got close to the full term of six years prescribed under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991! Section 4 of the 1991 Act says the term of a CEC and election commissioners is six years or till the age of 65 years, whichever is earlier.
However, over the years, the tenures of CECs have 'slid' down from over eight years in the 1950s to just about a few hundred days after 2004.
The apex court was riled by the 'mechanism' through which former IAS officer, Arun Goel, was appointed election commissioner in November 2022. It directed the government to produce the file relating to his appointment, leading to a huge uproar in political circles, adding to the ongoing fracas over the appointment of judges. Noting that the file relating to the appointment of Goel had moved "in the shortest possible time, superfast… not travelled even 24 hours", the Supreme Court asked the Centre if there was "any haste or tearing urgency".
In such circumstances, a private member's bill in the Rajya Sabha, seeking the formation of a committee headed by the CJI to select ECs, makes eminent sense.
The Constitution (Amendment) Bill, 2022, introduced by CPI(M) member from Kerala, John Brittas, in December 2022 to "amend the Constitution of India to ensure transparency, neutrality and fairness in appointment of the Chief Election Commissioner and other election commissioners" as well as to set up a permanent independent secretariat of the election commission, needs all-party political backing.
It's not a partisan, Left-inspired bill, but one that seeks to make an institution independent. There is need for political consensus -- even the BJP backed such a stand while in the opposition. A mandate is needed for bipartisanship to insulate institutions like the EC from the interventions of other pillars of democracy.
This bill proposes to set up a committee headed by the CJI, which includes the Lok Sabha speaker and leader of opposition for the appointment of ECs. "The Election Commission takes quasi-judicial decisions. It is one body that is vital for the survival of democracy," Brittas was quoted as saying in the media.
An independent secretariat of the EC, as opposed to the current system where civil servants who are a part of the executive are posted to the poll panel, must be considered desirable. By way of example, Lok Sabha and Rajya Sabha secretariats have a different way of recruiting officers and so could the EC secretariat. Officers who have worked at the district level, retired judges and others from the legal field could be considered for the ECI secretariat.
Taking it forward and providing greater political heft, it would be an even better idea to include the Prime Minister or the home minister for increasing executive participation in the project.
(Ranjit Bhushan is a senior journalist. These are the writer's views.)