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Greased Lightning

During a hearing, the lightning speed with which the present EC was appointed came under the scanner. Is a collegium model of appointment, like that for information commissioners, the answer?
03:30 PM Dec 03, 2022 IST | India Legal
greased lightning
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By Sanjay Raman Sinha

During a recent hearing, the Supreme Court took the government to task over the appointment of election commissioners. The Constitution bench headed by Justice KM Joseph was hearing petitions seeking a collegium-type body to appoint Election Commissioners (ECs) and the Chief Election Commissioner (CEC).

“Why the tearing hurry to appoint the Election Commissioner,” the bench quizzed the government. It was referring to the “lightning speed” with which the file to appoint Arun Goel as EC was processed; within 24 hours, he was appointed. The Court added that it was not questioning the merit of Goel’s appointment, but it wanted the government to explain the criteria used to select the CEC and ECs. 

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Justice Joseph highlighted many instances of CECs who served for a very short time since 2007, saying that even though the government is aware of the candidates’ date of birth, it still chooses individuals who won’t serve out the full six-year term. A CEC’s tenure is set at six years by the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, but he is required to resign when he turns 65.

TS Krishnamurthi, former CEC, speaking to India Legal said: “There are some practical difficulties. Often service and retirement age are factored in, leading to commissioners getting five years’ service despite a six-year tenure being prescribed in the Constitution. So they should be appointed at 59 years. Then they will get a full six year term. As for the CEC, the seniormost officer is selected. He should get a tenure of a minimum two or three years. In the current trend, they serve for 8 to 9 months and then retire. They are usually being appointed after 60 years. At least a year’s tenure should be mandatory and be planned accordingly. The Constitution clearly states that a CEC’s tenure should be six years or 65 years at the time of retirement, whichever is earlier. So if a CEC is appointed at 59 years, he will get a tenure of six years.”

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During the hearing, the Supreme Court noted that in the 10-year tenure of the UPA, six CECs were appointed, while in the eight-year tenure of the NDA, eight were appointed. The Constitution is silent on the appointment process and governments have taken advantage of it. Now there is a need to make a transparent appointment law.

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Article 324(2) of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, states: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

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During the hearing, the Court told the government that a strong chief election commissioner is needed who can take action against the prime minister if the need arises. 

Interestingly, the issue of potential pliability of the CEC was raised in Constitution Committee debates too. Shibban Lal Saksena, a member of the Constituent Assembly, had said: “I want that in future, no prime minister may abuse this right, and for this I want to provide that there should be two-thirds majority which should approve the nomination by the president. Of course, there is danger where one party is in huge majority. I want to provide that whenever such appointment is made, the person appointed should not be a nominee of the president, but should enjoy the confidence of two-thirds majority of both the Houses of Parliament.’’

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Dr BR Ambedkar had replied: “My friend Prof Saksena has rightly proposed the appointment process. It is no use making the tenure of the Election Commissioner a fixed and secure one if there is no provision in the Constitution to prevent either a fool or a knave or a person who will be under the thumb of the executive to be appointed.”

Ambedkar then proposed an amendment which said that the appointment of the CEC be made by the president subject to the law made on that behalf by Parliament. Article 324 (2) contains this provision. However, no law for appointment has been made and hence, the resultant debate. 

Pandit Hirday Nath Kunzru, a member of the Constituent Assembly, had opposed the appointing powers assigned to the president. Kunzru had opposed Dr Ambedkar’s proposal by arguing: “But, by leaving a great deal of power in the hands of the president we have given room for the exercise of political influence in the appointment of the Chief Election Commissioner and the other Election Commissioners and officers by the central government. The Chief Election Commissioners will have to be appointed on the advice of the prime minister, and, if the prime minister suggests the appointment of a party-man, the president will have no option but to accept the prime minister’s nominee, however unsuitable he may be on public grounds.”

Very tellingly, he had stated: “It is necessary, therefore, that every possible step should be taken to ensure the fair working of the electoral machinery. If the electoral machinery is defective or is worked by people whose integrity cannot be depended upon, democracy will be poisoned at the source.”

From Dr Ambedkar’s comment we can surmise that though the independence of the Election Commission was ensured, still he had doubts about free and fair appointments and functioning at the operational level.

Furthermore, there is a school of thought which holds that presidential prerogative and power to make appointments of ECs had led to centralisation of the electoral process and is fraught with dangers. This very point was raised in the Constituent Assembly debate by M Ananthasayanam Ayyangar who said: “We have taken away the elections from the provincial legislatures and governors. Practically, we have centralised the appointment of the Election Commission. This is a deviation with respect to which there have been complaints that the provincial governments have been made ciphers.’’

Today we are witnessing allegations against state ECs by regional parties and this fear is being revisited. 

Currently, the Election Commission is a three-member body. All three ECs have equal say in the decision-making of the Commission. 

One way to preserve the fairness of the appointment process is to emulate the appointment process of information commissioners. Information commissioners are appointed by the president on the recommendation of a committee consisting of the prime minister as chairperson, the Leader of the Opposition in the Lok Sabha and a cabinet minister nominated by the prime minister. This can be an ideal collegium model for appointment of ECs as well.

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