Collegium for Appointing Election Commissioners: What Next?

Only if practical measures to implement today’s order are put in place and can provide a level playing field, will we be able to usher in a modicum of integrity and confidence in the umpire. This is the essence of a ‘free and fair’ election.

A constitution bench of the Supreme Court has pronounced its long-awaited verdict on the appointment of chief election commissioner (CEC) and election commissioners (ECs). This order has decreed that the appointments should be made by the president of India based on advice from a committee comprising the prime minister, the leader of opposition in the Lok Sabha and the chief justice of India.

The court has said that the ECs must act in a free and fair manner:

“Democracy is inexplicably intertwined with power to the people…Democracy facilitates the peaceful revolution in the hands of a common man if held in a free and fair manner… The means to gain power in a democracy must remain pure and abide by the Constitution and the laws. Election Commission cannot claim to be independent then act in an unfair manner. A person in state of obligation to the state cannot have an independent frame of mind. An independent person will not be servile to those in power.”

These are significant observations. The court also directed necessary changes with regard to the funding of the Election Commission from the Consolidated Fund of India and also to establish a separate Secretariat.

The plea and arguments in this case closely resembled the report of the Citizens Commission on Elections (CCE) headed by Justice (Retd) Madan Lokur of the Supreme Court and comprising administrators, legal and technical experts, academics as well as senior journalists. The Commission (disclosure: the writer is the coordinator) has dealt with the functioning of the Election Commission of India (ECI) before, during and after elections and came out with detailed findings. These findings can be summarised as below:

  • ECI has plenipotentiary powers drawn from Article 324 of the Constitution of India to conduct free and fair elections.
  • In addition, Supreme Court has ruled: “When Parliament or any State Legislature made valid law relating to, or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions, but where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition…” [Mohinder Singh Gill vs. Chief Election Commissioner]
  • But the ECI is just not using these powers, because ECs are the appointees of the government of the day and not through an independent process of collegium. The case of one dissenting EC, who was sidelined and then eased out, has caused irretrievable damage to the ECI’s independence and integrity.
  • This compromises the autonomy of the ECI and creates doubts about the neutrality of the CEC and the ECs, and consequently, the neutrality of the Commission itself. This poses a serious danger to the fairness and integrity of not only the elections, but democracy itself.

The Commission had strongly recommended a Collegium system for the appointment of ECs.

The Constitution of India mandates the ECI with the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament State Legislatures as well as President and Vice President. The Constitution [Article 324 (2)] provides that appointments of the CEC and ECs will be made subject to the provisions of an enabling law made by Parliament. The avowed purpose of the ECI is to conduct free and fair election with expedition. In a series of cases, the apex court has observed that fair and free elections is a basic feature of the Constitution.

Watch: SC’s Election Commission Judgment Will ‘Change Perception’ of EC but Quality of Commissioners is Key

The President of India appoints CEC and ECs. They have a tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to judges of the Supreme Court of India. The CEC can be removed from office only through impeachment by Parliament. The Supreme Court has now said that the process of removing an EC should be the same as that for the CEC.

Such is the status, role and power of the ECI. Yet till date there is no enabling law to appoint the Commissioners and this is being done through a process that can often appear arbitrary and non-transparent, and as a pure executive process, as if rewarding a favourite with a post-retirement sinecure. It has taken the Supreme Court to point this out, adding that leaving the appointment wholly in the hands of the political executive is not a sound basis for preserving the independence of the ECI.

This flawed process of appointment has cast a shadow over the perception of  the independence and fairness of the ECI.  This is of great concern because due to what appears to be the fast-eroding integrity of the electoral process, India’s democracy is facing a serious crisis. The all-pervading electoral corruption, as many of us have argued,  is seriously hurting the dignity of our democracy.

It is therefore imperative on the part of the ECI to ensure electoral integrity by all means and not remain tied to the apron-strings of the government. Because of the flawed appointment system, ECs end up owing their high position to the party in office or politicians in power. Therefore, in the conduct of elections, the ECI does not consult the people, the real stakeholders who give power to these politicians. Instead, they are sometimes perceived to be pandering to the politicians in general and the ruling party in particular. Of late, we have noted that the ECI has become opaque, secretive and non-responsive to the electorate and their genuine concerns while being subservient to the political executive and going as far, in some cases, as to do its bidding.

The ECI is not placed in such an exalted position by “We, the People” only to bring political parties to power and allow them to do whatever they want. It is there on behalf of the people to sustain democracy and make it vibrant. It must be noted that the ECI is not a subordinate entity of the government, but an independent constitutional authority.

Some former CECs have been flagging the issue of appointment of ECs as key to the independence of ECI. One of them, S.Y. Quraishi, called a spade a spade:

“The fact that the Commission is appointed by the government of the day makes the appointing authority feel like a proprietor who expects the appointee to toe the line set by it…. It is ironic that perhaps the most powerful election commission in the world has the most flawed system of appointment. Nowhere in the world, does the government of the day unilaterally appoint the election commissioner. It is always by a collegium or even full parliamentary scrutiny/interview…”

They have been pleading for such a system for the ECI also. This long-felt demand has now been met by the apex court. What next?

Such an independent and credible ECI should seriously address the several ills seen to be plaguing India’s electoral system, such as allegations of selective culling of the electoral rolls; EVM voting often not complying with basic and essential requirements of ‘Democracy Principles’ i.e., each voter able to verify that her vote is cast-as-intended, recorded-as-cast and counted-as-recorded; vulgar use of money power; corrupting and criminalising the elections; buying and selling of votes; brazen misuse of the media; partisan functioning of election officials; and non-enforcement of the Model Code of Conduct. Only these measures can provide a level playing field, usher in integrity and restore confidence in the umpire, which is the essence of free and fair elections.

Only if this happens will the Supreme Court’s momentous judgment make the means to gain power in India’s democracy a pure process, one that fully is seen to abide by the Constitution and the laws, in practice and in spirit.

M.G. Devasahayam is a former Army and IAS officer and coordinator of the Citizen’s Commission on Elections.