Opinion Appointing Election Commissioners: The government must not control the watchdog

The first thing to consider is the constitutional provisions put in place guarantee that the constitutional machinery remains independent of the executive’s influence. Article 324 of the Constitution entrusts the EC with the “Superintendence, direction and control of elections”. It is an all-India body that has jurisdiction over elections to Parliament, state legislatures, and offices of the President and Vice-President. Notably, clause 2 of the Article provides for the composition of the commission, comprising the CEC and such number of other ECs, as the President may decide.

Further, Article 324(5) of the Constitution is intended to ensure the autonomy of the EC, free from all external political interference. It specifically mandates that the CEC can be removed through the same procedure as an SC judge. This is done through a presidential order, based on a motion passed by both Houses of Parliament in the same session. The same security of tenure is not available to ECs, who can be removed on the recommendation of the CEC by the President of India. However, their tenure is also free from executive control as none of them can be removed except on the recommendation of the CEC, which must be based on intelligible and cogent consideration as held in T N Seshan vs UOI (1995).

These provisions of the Constitution clearly envisage a framework where the EC can discharge its functions without fear, favour or pressure from the executive or the party in power. However, the proposed Bill challenges this core tenet by attempting to diminish the autonomy of the poll body. An impartial and independent EC is indispensable for adherence to the guarantee of equality under Article 14 of the Constitution, preventing any unfair or arbitrary treatment of any political party or citizens in exercising their right to vote. Given its significant responsibility and substantial influence on the democratic process, it’s crucial that the EC’s selection isn’t solely in the hands of the executive.

The Constituent Assembly members were concerned over the need to ensure the independence of the EC. B R Ambedkar said, “in order that elections may be free in the real sense of the word, they shall be taken out of the hands of the government of the day, and be conducted by the independent body called the EC”. The legislative space was left open by the founding fathers of the Constitution for the future Parliament to fill up but only with a just, fair and reasonable law.

Under Section 7 of the Bill, two members (PM and Cabinet Minister) constitute the quorum in the “Selection Committee” for the appointment of the CEC and ECs, making the third member (LoP) a mere formality. The fact that two members can decide on appointments means the opinion of the LoP has no value. In effect, it would possibly be a system where the PM will make the appointment of the CEC and ECs.

Another concerning provision of the Bill is Section 8(2) that states that “the Selection Committee may also consider any other person than those included in the panel by the Search Committee”. This provision does not square with the content of Section 8(1) which provides for transparency in the selection process. Allowing consideration of individuals not listed by the Search Committee means the Selection Committee has the power to appoint the CEC or ECs not recommended by the search committee, raising concerns about potential favouritism and arbitrary decision-making in the appointment process. Additionally, the provision for the Selection Committee to regulate its own procedure as outlined in Section 8(1) will further bring arbitrariness in the selection process. It may potentially lead to the appointment of a “yes man” who will eventually decide the fate of our democracy.

To maintain the constitutional values that are part of the basic structure of the Constitution — encompassing the rule of law, secularism, the right to equality and fair elections — it is imperative to affirm the presence of an independent EC. The need for an independent body to hold elections was emphasised in courts in a number of cases. In T N Seshan, CEC vs UOI and others, it was observed that “…there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country”. The proposed Bill jeopardises this fundamental principle.

The proposal of this Bill in today’s political context when issues are being raised and allegations levelled about the EC like never before will be another nail in the coffin for the EC’s autonomy. Ashok Lavasa’s case, whose independent stance led to cases against his family members serves as a stark reminder. As the senior most, he could have been Chief Election Commissioner during critical state elections. Yet, his decision to step aside dealt a significant blow to the credibility of the ECI. This case further amplifies concerns about the proposed Bill’s potential impact on the independent working of the ECs.

A global review of the appointment process of an “election-body head” involving constitutional functionaries or Opposition members with a real say in the decision-making showcases valuable practices that could be adopted in India too. For instance, in the United Kingdom, the Speaker’s Committee on the Electoral Commission, composed of UK Parliament MPs, oversees the electoral commissioners’ appointments. This model encourages a balanced approach to the appointment process. In South Africa, the Commission has five members, one of whom shall be a judge, appointed by the President. The search process involves a committee headed by the President of the constitutional court (chairperson), alongside representatives from the human rights court, the Commission on Gender Equality, and the public prosecutor. The inclusion of representatives from various institutions ensures a holistic evaluation. In the US, the Federal Election Commission comprises six election commissioners, with a restriction that no more than three members can belong to the same political party. This balanced composition promotes bipartisanship and prevents one-sided decisions. Additionally, it reduces the likelihood of decisions being influenced solely by political considerations.

The strength and legitimacy of a democracy hinge on the means employed to attain power for which a fiercely independent, transparent, competent and equitable EC is a must.

Swarup is former coal and school education secretary of India. Singh is a fourth-year law student at Rajiv Gandhi National University of Law, Patiala, Punjab