Light Theesko : Election Commission of India- Supreme Court’s unfinished task

On November 24th, when the Supreme Court questioned the ‘lightning speed’ at which Arun Goel was appointed as Election Commissioner, the nation woke up to another chamatkar of Modi sarkar.The procedure for Goel’s appointment took less than 24 hours! The wonderful appointment was made the day after the apex court started examining the need to insulate the Election Commission of India (ECI) from political influence by setting up a ‘neutral and independent mechanism’ for the appointment of Election Commissioners.

The post of Election Commissioner in question had been vacant since May. After Goel had taken voluntary retirement as secretary (on Nov 18), the very next day (Saturday) he was appointed as the Election Commissioner. He took charge on Monday.

Justice KM Joseph, the presiding judge of the bench, observed: “We don’t have anything against an individual. This man, in fact, is excellent in terms of academics. But we are concerned with the structure of the appointment. On 18th we hear the case, on same day you move the file, on same day PM says I recommend his name. Why this urgency? It says based on the list maintained, there are four names that you have recommended. I want to understand that out of vast reservoir of names, how do you actually select a name…Someone who was about to be superannuated in December. He is the youngest among the four names that were recommended. Is that a criterion? How did you select?”
The court then pointed out that three of the four candidates on the panel from which Goel was picked were 62 years old and could not have completed a full term of six years.

Under law, the Chief Election Commissioner (CEC) as well as the two Election Commissioners (ECs) ought to have separate six-year tenures. Still, as the SC lay bare, the Centre has reduced the scope of candidates to bureaucrats and ensured that neither the CEC nor any of the ECs serves their full term.

“A CEC is a person to be appointed in his own right. You have made it into a promotion source. You are supposed to appoint a person directly as CEC. You have made ECs a feeder category. The founding fathers contemplated a CEC who will hold office for six years independently… not as a promotion,” Justice Joseph said, addressing the Union government.

Thanks to the resilience and long-standing strengths of India’s democracy, the Judiciary has time and again proactively halted insidious attacks on constitutional bodies by myopic and lesser mortals presiding over the Executive.Since Independence, successive governments at the Centre have chosen to ignore the functional independence of the Election Commission of India by not enacting a law envisaged by Article 324 of the Constitution. Article 324 provides for the appointment of Election Commissioners, but it does not delineate the mechanism or procedure for such appointments. The enabling law that the Constitution-makers had envisaged for proper appointment of ECs has not seen the light of the day in the past 72 years. Matters came to a head with Goel’s (dis)appointment.

Since 1993, the ECI has been a multi-member body, comprising a CEC (chairman) and two Election Commissioners (ECs). It was made a multi-member body mainly to belittle former CEC TN Seshan, who, as a no-nonsense official, had become a hot potato for the Union government of the day.  The CEC has six-year tenure, but the incumbent should demit office on attaining 65. The SC has questioned the trend to casually appoint ECs and elevate one among them as CEC based on seniority. The Court has called out the present practice of appointing CECs close to that age as it leaves them with a brief, insecure tenure. Unlike in the case of Chief Justices, insecure tenures of ECs undermine their independence. Supreme Court judges have security of tenure in that they can be removed only by impeachment by Parliament. In the case of the ECI, only the CEC enjoys such status. The ECs can be removed on the CEC’s recommendation.

On the ECI as it stands today, former CEC SY Quraishi has gone on record: “The most powerful Commission in the world has the most defective system of appointment.

Unilaterally the Executive of the day is appointing the Election Commissioners, whereas all over the world there is a wider system of consultation”. Quraishi’s point is that the ECI, a constitutional body performing politically sensitive functions, surely deserves to have a collegium.
The Supreme Court has rightly underlined the importance of having a Chief Election Commissioner who is ‘independent and a man of character’.The Court pithily observed:  Suppose for example, there are some allegations against the Prime Minister and the CEC has to act but he does not act. Will it not be a case of complete breakdown of the system?”

The Court paid tributes to TN Seshan, who, as the CEC during 1990-96, had initiated the process spring cleaning India’s electoral system. The semblance of sanity that we do have today in the electoral process is because of the introduction of electors’ photo identity cards and the strict enforcement of the Model Code of Conduct under his dreaded watch. Derided as ‘Alsatian’ by mighty politicians whom he had dutifully humbled, the dogged CEC went on to list 150 malpractices that he himself scrupulously uprooted from all the elections held under his hawk-eyed superintendence, including distribution of liquor, bribing voters, ban on writing on walls, and the use of religion in election speeches.

The apex court, having turned the spotlight on flaws in appointment of ECs, must now take the case before it to its logical conclusion. It must get the Union government to institute a collegium-like system (we know the Centre is averse to even collegiums of SC and HCs) to address systemic flaws in the Election Commission of India. This includes extending the CEC’s tenure security to the ECs. The nation will be beholden to the Supreme Court if it completes this unfinished task.