Act now, redo the selection process of the Election Commission

The presence of the Chief Election Commissioner (CEC) and his Election Commissioner (EC) colleagues in an “informal” meeting with the Principal Secretary to the Prime Minister has led to a renewed focus on the independence and impartiality of the Election Commission of India (ECI). , The CEC’s initial hesitation when “summoning” was justified, given that the ECI is a constitutionally mandated body that must maintain distance from the executive, both in perception and in reality.

In the last seven years, the ECI has faced several allegations in favor of the ruling Bharatiya Janata Party. For example, the Citizens’ Commission on Elections (CCE), headed by Justice Madan B Lokur, a retired Supreme Court judge, in its report titled “An Inquiry into India’s Electoral System”, highlighted several instances of inaction on the part of . ECI conducting the 2019 general election. The government was also accused of harassing Election Commission Ashok Lavasa for supporting action against the Prime Minister for violation of the election code of conduct.

Given that the ECI is the institutional foundation that holds the edifice of Indian democracy, we suggest that changes in the appointment process for the Election Commission could strengthen the independence, neutrality and transparency of the ECI. The appointment of the Election Commission comes under the purview of Article 324(2) of the Constitution, which establishes the institution. Relevantly, it contains a ‘subject to’ clause which provides that both the number and term of election commissions “shall be subject to the provisions of any law made by Parliament in that behalf by the President.”

Dr. BR In Ambedkar’s words, this ‘subject to subject’ clause was introduced, “to prevent a fool or a fool or such person as is likely to be under the thumb of the executive.” It was left to the Parliament to make laws regarding the appointment of the Election Commission. Apart from enacting a law in 1989 to increase the number of Election Commissions from one to three, Parliament has not made any changes to the appointment process so far.

In the face of legislative inaction, it is now likely that the judiciary will take over Parliament. Three writ petitions with one pending since 2015 are urging the Supreme Court to declare that the current practice of appointing ECs by the Center violates Article 14, Article 324(2) and the basic feature of the Constitution to democracy. These petitions argue for an independent system for the appointment of the Election Commission, as recommended by the previous Law Commission and various committee reports.

In 1975 itself, the Justice Tarkunde Committee recommended that election commissions be appointed on the advice of a committee consisting of the Prime Minister, the Leader of the Lok Sabha, the Opposition and the Chief Justice. This was reiterated by the Dinesh Goswami Committee in 1990 and the Law Commission in 2015. The Fourth Report (2007) of the Second Administrative Reforms Commission additionally recommended that the Law Minister and the Deputy Chairman of the Rajya Sabha be included in such a collegium.

A precedent exists in the case of Roger Mathew v South Indian Bank Ltd., which argues against a sole appointee to a quasi-judicial body. The Supreme Court held that “the Election Commission is not only responsible for conducting free and fair elections, but it also performs a quasi-judicial function between the ruling government and various political parties including other parties. It cannot be the sole participant in the appointment of members as it empowers the ruling party to elect a person whose loyalty is assured and thus there is a possibility of manipulation in the selection process.

Therefore, the perceived and actual independence of the Election Commission can be enhanced by setting up a multi-institutional, bipartisan committee for fair and transparent selection of the Election Commission. Such procedure is being followed in respect of other constitutional and statutory authorities like Chief Information Commissioner, Lokpal, Vigilance Commissioner and Director of Central Intelligence Bureau. The quasi-judicial nature of the Election Commission’s functions makes it particularly important that the appointment process conforms to strict democratic principles.

The role of the executive in the present appointment process has come under judicial scrutiny due to lack of transparency. Anoop Barnwal v Union of India, Secretary to the Ministry of Law and Justice (WP(C) 104/2015) which has been pending since 2015, and referred to a Constitution Bench in 2018, has raised the same demand for the collegium system. ECI. Even though it has been listed several times in 2020, it has not yet reached the hearing stage. A bench of Chief Justice JS Khehar and Justice DY Chandrachud had also noted that “the Election Commissioners supervise and conduct elections across the country, and this is the importance of his office, and his selection is to be done in the most transparent manner”. ” Referring to the mandate of Article 324(2) of the Constitution, the bench said, “Parliament is expected to make laws, but it has not been made.”

Parliament would do well to undo judicial rigor by going ahead and enacting a law establishing a multi-institutional, bipartisan collegium to select the Election Commission. Separation of powers is the gold standard for governments around the world. The constitutional responsibilities of the ECI require a fair and transparent appointment process that is beyond reproach, which will reaffirm our faith in this important pillar of our politics. The current veil over the Election Commission’s appointment process potentially undermines the very framework on which our democratic aspirations rest.

MV Rajeev Gowda is the Chairman, AICC Research Department and former Member of Parliament. Aiman ​​Hashmi is a judicial law clerk and legal researcher in the Supreme Court of India.