A Big Bang Poll Reform: Taking Election Commissioner selection out of government’s hands was long overdue

Supreme Court has done what successive governments shied away from. Selection of CEC and ECs by government was problematic. With weighty decisions on conducting elections and adjudicating disputes between parties to be made by this high constitutional office, election commissioner selection is best taken out of Executive’s hands

On May 17, 2021, the Association for Democratic Reforms (ADR) in public interest had filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of the mode of appointment of the chief election commissioner and election commissioners by the Government of India.

It was held that this procedure of appointment of CEC and ECs by the executive without any consultation or concurrence of other entities was violative of Article 14 (equality before law) and Article 324(2) which mandates Parliament to make a just, fair and reasonable law for appointment of members of the Election Commission of India (ECI)

A Big Electoral Reform

This was on the lines of the recommendations of the Law Commission’s 255th Report of March 2015, the Second Administrative Reforms Commission in its fourth Report of January 2007, the Dinesh Goswami Committee Report of May 1990, and Justice Tarkunde Committee Report of 1975.

The landmark judgment of March 2 by a five-member Constitution bench of Supreme Court has ruled that the selection of members of the ECI would be done by a Committee comprising the Prime Minister, the Leader of Opposition or in his/her absence, leader of the largest opposition party in the Parliament, and the Chief Justice of India. This system will be in vogue till the Parliament makes a law in this regard.

Why this change in the selection procedure was necessary is borne out by the way certain decisions were taken by the ECI over the last few years and the manner in which members were appointed by the Government. Successive Governments since the 1950s have failed to enact a law and the appointment of the CEC and ECs was done solely by the Executive. This was incompatible with Article 324(2) and hence arbitrary. Recommendations of various committees as mentioned above were studiously ignored by all Governments.

Perception Matters

Democracy is a facet of the basic structure of the Constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the ECI should be insulated from political and or Executive interference. The ECI is not only responsible for conducting free and fair elections but it also renders a quasi-judicial function when disputes arise between various political parties including the ruling party in government and other parties.

Hence the perception amongst the voters, political parties and others about the Election commission must be that it is non-partisan, impartial, independent, insulated from interference by the Executive, and is a fair constitutional body. This perception had unfortunately taken a beating over the last few years.

In March 2021, the Citizens Committee on Elections (CCE) chaired by retired SC judge Madan Lokur examined the 2019 general elections and gave the following observations:

1. ECI deliberately delayed the announcement of elections to enable the inauguration blitz of a slew of projects (157) scheduled between February 8 and March 9.
2. It was the longest election in the country’s history.
3. There was lack of consistency by the ECI in enforcing the Model Code of Conduct and a perception of ECI treating the ruling party with kid gloves thus disturbing the level playing field.
4. The Election Commissioner who dissented and stood his ground was eased out from the ECI.
5. Another disturbing phenomena was the abuse/ misuse of armed forces for election propaganda. This caused anger among the veterans and they wrote to the President but received no response.

When Executive Discretion Ends

The SC judgment will satisfy the ECI too as over the last many years various CECs have been demanding security of tenure. As per the Constitution, the tenure should be 6 years and retirement at 65 years. However if we examine the tenure duration of last few CECs since Dr Nasim Zaidi, the tenures have been: Zaidi 4 years 10 months, Joti 2 years 8 months, Rawat 3 years 3 months, Arora 3 years 7 months, and Sushil Chandra 3 years 3 months. For security of tenure now the same rules are applicable for the Election Commissioners as for the CEC.

The SC also questioned the Government about the lightning speed at which Arun Goel was appointed EC after he sought voluntary retirement, which was accepted, file cleared and he was appointed EC, all in 24 hours. All this happened while the Supreme Court was hearing the case and since the retirement of Sushil Chandra in May 2022, one post of EC had been lying vacant for 5-6 months.

Though criticism of the ECI by political parties may still continue, they will lose their moral authority as they too will have a say in the appointment of the ECs in future. Whether the new selection procedure will improve the functioning of the ECI remains to be seen as ultimately it depends on the integrity of the person occupying the chair. However it is hoped that with the new process of appointment coming into force, the perception about the ECI will change for the better.

The article was originally published in “MoneyControl.com“.

This article is written by Maj Gen Anil Verma (Retd), Head of ADR.