ECI needs to be insulated from the executive influence through drastic changes in the process of appointment of CEC, ECs and providing it a permanent, independent secretariat.
- Prasanna Mohanty
- New Delhi
- June 1, 2019
- UPDATED: June 14, 2019 09:26 IST
The run-up to the election, right until the day of the counting, was marred by frequent disputes over the role of the Election Commission of India (ECI) in providing a level playing field to the opposition political parties, raising serious doubts about the credibility and integrity of the entire electoral process.
These disputes ranged from selective actions for violations of the model code of conduct (MCC) to handling of the EVMs and involved an unsavoury episode of raids by the Income Tax and Enforcement Directorate officials on the opposition political parties. So much so that the Supreme Court had to step in on more than one occasions and former President Pranab Mukherjee had to remind the ECI of its responsibility to maintain institutional integrity.
Given the significance of free and fair elections in the working of India's democracy and the critical role the ECI plays, the next government would do well to revisit some of the long pending demands to reform the process of its constitution and functioning.
This article is the third in a series that looks at the agenda for the Narendra Modi government's second term. Read the first and second part here.
Consultative and broad-base appointment process
Article 324 of the Constitution - which empowers the ECI to "superintendence, direction and control of elections" - envisages an independent constitutional entity free from executive interference. It provides for the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) in the following manner:
"The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President".
A 2015 Law Commission report on electoral reforms says the Constituent Assembly did debate the process of appointment of the CEC and ECs during which a suggestion to subject such appointments to confirmation by a two-third majority in the Parliament was made. However, a joint session of the Parliament rejected it and left the option open for the Parliament to make appropriate legislation.
Seven decades down the line, there is no trace of such legislation. The government of the day continues to appoint these officials on its own in spite of the fact that multiple committees and commissions, even the Law Ministry and ECI, have since then sought a legal framework to make their appointments bipartisan, consultative and broad-based.
In 1990, the Goswami Committee report suggested that the CEC should be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition in the Lok Sabha; the CEC should be additionally consulted for appointment of other ECs and that the entire process should have statutory backing. It did lead to drafting of an amendment in 1990 but it was later withdrawn.
The Second Administrative Reforms Commission of 2007 too backed a similar arrangement: A collegium consisting of the Prime Minister, Lok Sabha Speaker, Leader of Opposition in Lok Sabha, Law Minister and Deputy Chairman of Rajya Sabha should make recommendations to the President for appointment.
In 2015, the Law Commission also proposed a three-member collegium consisting of the Prime Minister, Leader of the Opposition in Lok Sabha and Chief Justice of India for such appointments. It provided a comparative picture: In the US, the federal election commissioners are appointed by the President with the advise and consent of the Senate; in Canada, they are recommended by a House of Commons resolution and in South Africa by the National Assembly.
A broad-based appointment process is in consonance with what already exist for the appointment of the Lokpal and Lokayuktas, Chief Information Commissioner and Information Commissioners, CBI Director and Central Vigilance Commissioner.
The appointment process mattered little since TN Seshan turned the ECI into a fiercely independent and powerful institution in early 1990s, but the current situation calls for a rethink.
Protections to ECs on par with CEC
It has also become necessary to look at the process of removal of the ECs. While Article 324 (5) provides protection to the CEC by saying that his/her removal from office shall be on "like manner and on the like grounds as a Judge of the Supreme Court" and "the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment", no such protections are available to the ECs. They are at the mercy of the government and CEC.
Extending the constitutional protections available for the CEC to the ECs become significant in the light of a public spat between the CEC Sunil Arora and EC Ashok Lavasa over clean chits given selectively to some political leaders over poll code violations and non-inclusion of dissent notes in the official orders.
Permanent, independent secretariat to insulating staff
Another key reform would be to provide the ECI with a permanent and independent secretariat to protect its staff from various pulls and pressures from the executive. It does have a separate secretariat, but its senior officials, including Deputy Election Commissioners and DG level officers, are drawn from civil services belonging to different states and are on deputation for a limited period. Only the lower level officials are permanent staff from its own rank.
For long, the ECI has been insisting on a secretariat along what is available to other constitutional authorities. The Goswami Committee recommended an arrangement similar to that of the Lok Sabha/Rajya Sabha secretariat provided in Article 98(2), which permits the Parliament to regulate the recruitment and service conditions of persons appointed to the secretarial staff in either House of Parliament.
Following this, a constitutional amendment was introduced in the Rajya Sabha in 1990 but was withdrawn in 1993 after the ECI was converted to a three-member body from a one member one , never to be taken up again.
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