Why the Supreme Court is right in reviewing the appointment process of Election Commissioners
A democracy is only as effective as its institutions,
The absence of a law for the appointment of Commissioners to the Election Commission of India has recently been highlighted by the Supreme Court, by referring a PIL on the subject to a constitution bench.
The plea has requested the court to direct the Parliament “to make law for ensuring a fair, just and transparent process of selection by constituting a neutral and independent collegium/selection committee to recommend the name for the appointment of member to the Election Commission”.
Article 324(2) lays down that the President of India shall fix the number of Election Commissioners in a manner he sees fit. Further, Article 327 states that “Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections...”
But the ruling dispensations have evaded their responsibility as they do not want to let go of this power. Even though the Parliament brought in a Bill in 1991 to specify the terms of service, it fell short of making a law for the appointment of Commissioners.
Over the years, the commissioners have occasionally been accused of being stooges of the government that appointed them, even though no misconduct has ever been proven. This is a source of anguish and annoyance for the commissioners concerned, who have dedicated their lives to doing their constitutional duty with fierce impartiality. In one case, no less than a CEC wrote to the President of India, seeking dismissal of his fellow commissioner.
The demand for appointment of ECs through a collegium has received broad support from within the EC, and the civil society at large. In 2006, CEC BB Tandon wrote to then-President APJ Abdul Kalam, requesting that just like the NHRC and the Central Vigilance Commission, the appointments of the Election Commissioners be made through a committee, consisting of the Speaker of the Lok Sabha along with Leader of Opposition etc. CEC Gopalaswamy in 2009 wrote a similar letter to the President. I have also voiced the same concern publicly over and over again since 2010.
Prominent political figures have also lent their support to the collegium system over the years. For instance, in June 2012, LK Advani wrote to the then Prime Minister Manmohan Singh that the current system of appointments was partisan and prone to manipulation, and so, the involvement of representation from the Opposition be considered in appointments of the Comptroller and Auditor General and the Chief Election Commissioner.
The Law Commission of India in its report on electoral reforms in 2015 recommended de-politicisation of constitutional appointments, and that “it is of paramount importance to ensure that the ECI, entrusted with the task of conducting elections throughout the country, be fully insulated from political pressure or executive interference to maintain the purity of elections, inherent in a democratic process”.
The LCI went further to specify that the President should appoint the Election Commissioners based on a broad based collegium, consisting of the Leader of Opposition and the CJI, apart from the PM as the Chairperson.
The apex court itself in 2017 had observed that even though the appointments to the Commission have been “very, very fair and politically neutral”, there was a need for a proper process so that the officials responsible for the conduct of elections in our country are appointed using the “most transparent and just process”.
The sacredness of an institution cannot be based on the faith that all appointees will continue to be fair and apolitical in the future too. The past few months have seen politicians and the media questioning the credibility of the EC, and the transparency in its functioning. The ECI has been called some shocking and shameful names. This underlines an urgent need to legislate on the issue, to put the matter to rest once and for all.
Along with the appointment, the system of removal of Election Commissioners also needs review. The present system discriminates against the commissioners. While they have equal powers/ vote in the functioning of the Commission, they feel they are on probation as the government can remove them on just the CEC’s recommendation. The protection given to the CEC from removal must extend to all three commissioners.
It is often contended that the judiciary should not “overreach”, and the matter should be best left to the Parliament in accordance with the doctrine of “separation of powers”. But I must point out that “separation of powers” has to be viewed with another constitutional doctrine of “checks and balances”.
A democracy is only as effective as its institutions, and depoliticising key constitutional and statutory appointments is the most crucial element.
When the collegium system is considered necessary for NHRC, CIC, CVC and the judges, what is the rationale for leaving out ECI and CAG? These appointments too should not only be fair and transparent, they should institutionally be made bipartisan and transparent as well.
National interest has to prevail over party interests. Judicial intervention is the only option left when the other two branches of the government have failed to act for seven decades. The credibility of the ECI must be protected at all costs, if our democracy has to survive. Let’s hope the constitution bench buries the controversy permanently.