The centrality of the Election Commission in maintaining the ethics, apparatus and integrity of the nation’s democracy can hardly be overstated. It is for this reason that the Election Commission of India (ECI) was conceived as an independent and permanent constitutional body. The Constitution of India confers the Election Commission with absolute authority with regard to ‘superintendence, direction and control’ of all elections, and makes it incumbent on the President of India or the Governor of any state to make available all assistance required by the Election Commission.
Moreover, the Supreme Court itself has declared Article 324 to be the reservoir of all powers of the ECI and has repeatedly expressed that free and fair elections are part of the basic structure of the Constitution. However, despite these enormous powers vested in the Commission, there are still certain fundamental issues which pose a threat to the neutrality and independence of the Commission.
A number of Public Interest Litigations (PILs) filed between 2017 and 2022 by Anoop Baranwal, Ashwini Upadhyay, Association for Democratic Reforms (ADR) and Dr Jaya Thakur, which the Supreme Court’s five-judge bench is hearing right now, has once again brought these issues to the fore.
The genesis of the problem lies in the flawed system of appointment of the Chief Election Commissioner (CEC) and the two additional election commissioners, which is done unilaterally by the government of the day. Owing to this, the EC is perceived to be threatened by a potential influence and interference by the appointing government of the day.
There are three elements to the issue: appointment of the election commissioners, their elevation to the post of Chief Election Commissioner and the protection from removal once appointed.
The petitioners’ demand is for an important measure to ensure non-partisanship and impartiality of the EC through the appointment of the members of the Election Commission through a collegium. In fact, many political leaders like L K Advani and former election commissioners such as T S Krishnamurthy, B B Tandon, N Gopalaswami and this writer had supported this idea of collegium appointment, which has been repeatedly taken up by the Commission.
The PILs put forward the proposal for a three-member collegium comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of the Supreme Court to appoint the members. An Election Commission in office with the express consent of both the government and the opposition stands a far better chance of enjoying the trust of the nation and all parties contesting elections.
The fact that this system is already in operation for the appointment of the Central Vigilance Commissioner, Chief Information Commissioner and Director of the Central Bureau of Investigation makes it easy to adopt. Even appointments and promotions in the high courts and SC are done by collegiums, though they consist entirely of the judges. That collegium needs to have a broader base as well.
In fact, nowhere else in the world is an election commissioner unilaterally appointed by the ruling government. It is either by collegium or with complete parliamentary scrutiny and interview. In some countries, the candidates are interviewed on television for the nation to see. Why then, must India, one of the pioneers and exemplars of electoral democracy, fall below the global standard in this issue of commissioners' appointments?
Institutional checks
The second element is of the elevation of the two election commissioners to the post of Chief Election Commissioner. Though, since the introduction of the multi-member Election Commission in 1993, the senior-most has been invariably elevated, there is no guarantee that this will always happen. In this situation, the two commissioners consider themselves on probation and may try to earn the government’s goodwill to ensure they are not superseded, as has happened in the case of the Chairman of the Union Public Service Commission of India, another constitutional authority. This weakness may be exploited by the government to control an independent-minded CEC through the majority vote of the two commissioners. It is always good to hope that it will not happen, but institutional checks must be in place.
A third measure would be providing legal safeguards against the arbitrary removal of members of the Election Commission. The CEC’s position is already secure, given that, once appointed, he cannot be removed except through impeachment like a judge of the SC which requires a two-thirds majority in both Houses of Parliament. The other two commissioners, however, may be removed simply with the recommendation of the CEC, as almost happened in 2009. This should have been taken care of by the Act of 1993, which made the EC a three-member commission. This grave failure or omission must be rectified without further delay. It is hoped that the SC bench will address this.
Over the years, India’s electoral system has been greatly acclaimed globally, and it has been graced by an almost continuous presence of independent-minded and spirited election commissioners. But it is neither wise nor strategically sound to rely on the hope that this may continue forever. Instead, we need to establish robust institutional mechanisms in order to ensure the credibility of the body. The fate of a democracy relies, for the most part, on the strength of its institutions. It should therefore be our greatest priority to further the process of strengthening our institutions to make them independent, autonomous and transparent.
Electoral reforms
Recently, we have been hearing a lot from the government’s ministries and leaders about the willingness to bring about major electoral reforms. Simultaneously, we are also witnessing many questions being raised about the EC’s credibility. Instituting the collegium system, therefore, will be a great first step and an incredible chance to address both these issues at once.
Moreover, the ideal of democracy, both for its survival and sustenance, depends squarely on the functional independence and integrity of the Election Commission. The neutrality and autonomy of the Commission are what characterise its reputation as an organisation indispensable to Indian democracy.
We are now presented with an opportunity to settle the issue for good that has been ignored for over two decades. The Supreme Court, which has been a shining symbol of institutional robustness and independence, now has ample opportunity to clinch the issue of institutional autonomy of the Election Commission.
(S Y Quraishi is former Chief Election Commissioner of India and the author of ‘An Undocumented Wonder - The Making of the Great Indian Election’)