By S Saraswathi
There is a legitimate expectation in the Constitution that a law should be made on the selection process of Election Commissioners (EC). This is an observation of the Chief Justice of the Supreme Court a few days ago while admitting a PIL challenging the process of appointment of Election Commissioners. It opens another issue concerning one of the most important Constitutional bodies — the Election Commission of India.
The situation has reached a stage where a hint is made that the Supreme Court is likely to intervene if a law is not made regarding appointment of ECs. The Chief Justice observed that the Chief Election Commissioner (CEC) should be a “neutral person between political parties. Appointment has to be in a transparent manner”. The PIL came before the court a day after the appointment of the next CEC for a period of six months.
The ECI has also demanded “contempt of court” powers for itself to deal with unfounded allegations levelled against it from time to time. Remember, the Constitution has vested the power of superintendence, direction, and control of elections in the Election Commission consisting of an Election Commissioner and such number of Election Commissioners as fixed by the President from time to time.
Article 324(2) of the Constitution provides for the appointment of CEC and other ECs by the President subject to the provisions of the law made in that behalf by Parliament thus envisaging a law to follow. This has not happened. They are appointed on the advice of the Union government. There is no provision for consultation with political parties or for Parliament approval. The Constitution makers must have conceived an administrative body to handle elections according to set rules.
The Constitution also provides for appointment by the President after consultation with the Commission of Regional Commissioners considered necessary to assist the Election Commission in the performance of its functions. The EC, constituted as a single-member body with only the CEC in 1950, continued so till 15th October 1989. Then, for a short period of a few months, it was made a three-member body. After swift changes back and forth in the number of members, it was made a three-member Commission from 10th October 1993. All three enjoy equal powers and status with the CEC as the Chairman and hold office for a period of six years or till the age of 65, whichever is earlier. Election Commissioners are equal to Supreme Court judges in status.
The Constitution lays great stress on the independence of the Election Commission and provides for removal of the CEC solely by impeachment as in the case of Supreme Court judges. Support of two-thirds majority in the Lok Sabha and Rajya Sabha on grounds of proven misbehavior or incapacity is needed for impeachment. Other ECs cannot be removed without the recommendation of the CEC.
In 2011, the then Chief Election Commissioner suggested a Constitutional Amendment equating ECs with the CEC in the matter of removal so as to strengthen the independence of the institution. His suggestion came in the wake of the recommendation of his predecessor CEC for the removal of an EC. The government did not agree. Conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners are determined by the rules of the government. Election work in States and Union Territories is supervised by the Chief Electoral Officer of the State/UT subject to the over-all superintendence of the EC as prescribed in the Representation of People’s Act 1951. This officer is nominated by the EC in consultation with the government of the State/UT.
Functional independence of the Election Commission is somewhat limited. The administrative expenditure of the EC is not charged on the Consolidated Fund of India as for UPSC and CAG, but is voted. It has also no freedom in the appointment of its officers and staff like the Secretariats of both Houses of Parliament and the Supreme Court. Hence, functionally, the Election Commission is practically a department of the government.
State Election Commissions have been constituted under 73rd and 74th amendments of the Constitution to conduct and control elections to panchayat bodies and municipalities. The ECI has no role in conducting local body elections. A State Election Commissioner is appointed by the Governor of the State which means by the respective State governments.
The office in charge of managing matters pertaining to elections in various democracies has several common features, but not without vital variations. The idea of granting some amount of independence to the body is acknowledged as a basic requirement to ensure free and fair elections.
The Election Commission in Britain is an independent body set up by the Parliament and answerable to it. The Commission’s mandate has been set out in the Political Parties, Elections, and Referendums Act, 2000 and ranges from regulation of public donations and expenditure of political parties to promoting greater participation in the electoral process.
The Chairman of the EC is appointed by the Speaker’s Committee on the Election Commission, which is a body comprising nine MPs, created under the said Act of 2000 to scrutinise the Election Commission. Four Additional Commissioners serve on part-time basis who are nominated by leaders of political parties, scrutinised by the Speaker’s Committee on the Electoral Commission and approved by the House of Commons. Those nominated by the three largest parties serve for a term of four years, while the Commissioner nominated by a smaller party holds office for a two-year term. There are separate ECs for Scotland, Wales and Northern Ireland. Since 2007, regional offices across England have been constituted for East, South-East, South-West, Midland, and North England.
The Australian Election Commission is a statutory authority answerable to the Joint Standing Committee on Electoral Matters of the Parliament of Australia. It consists of a Chairman who is a sitting or retired judge of the Australian Supreme Court, the Election Commissioner and a non-judicial member (usually the Australian Statistician). The first two are part-time officials.
In Canada, the Chief Electoral Officer is appointed for a ten-year period by a resolution of the Canadian House of Commons. He is directly responsible to the Canadian Parliament and functions completely independent of the government and political parties. He can be removed only on a joint request following a majority vote by the House of Commons and the Senate.
The first Commissioner of the EC constituted in South Africa was appointed through a process of public nominations and an interview as prescribed by the Constitution. The emphasis has always been on professional expertise.
Thus there is no ideal method of selection that can be considered as most democratic and absolutely neutral. Even the EC of Britain which is answerable to Parliament has faced criticisms for many lapses.
What is needed is an Election Commission free from fetters and able to function independently without any pressure and ensure free and fair elections. Professional electoral management marked by impartiality and integrity must be our aim. It can be achieved by adherence to Constitution and law whatever the mode of selection of the managers.—INFA
(The author is former Director, ICSSR, New Delhi)