Reforming Election Commission

This is a guest blog by Mohit Malik.

The general election for the 17th Lok Sabha, according to many senior journalists, has been the most bitter, crass and vicious of all the elections in the history of independent India. Important Issues like unemployment, poverty, economic growth, secularism, constitutionalism, etc have been side-lined. Jingoism, hyper-nationalism and victimization of Hindus have, unfortunately, been the “trending” topics in this election campaign. Surprisingly and probably for the first time Election commission of India (ECI) has become one of the hottest topics in these elections; and that too, for all the wrong reasons. The ECI -being one of the watchdogs of Indian democracy- is responsible for the conduct of free, fair and transparent elections in the country in an impartial and independent manner. This independence and impartiality seems to be deteriorating, especially in this election season, when many of the ECI’s decisions are being heavily criticized for being biased towards the ruling dispensation. In this context, let us try to understand the root of this growing distrust in the ECI and propose solutions to restore its stature.
Constitutional Provisions

It is common knowledge that the constitution of independent India was adopted and enacted on 26th November 1949. However, only a handful of provisions of the constitution came into force on that day. Major portion of the constitution came into effect on 26th January 1950, the date of commencement of the constitution.  Among those handful of provisions that became effective of 26th November 1949 was the Article 324. Article 324 establishes the institution of ECI, confers powers on the commission, and provides for the composition of the ECI as well as the procedure for appointment and removal of the election commissioners. This Article 324 is partly the reason why distrust in the ECI is on the rise.
Composition of ECI

Article 324 (2) states that 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. Article 324 (2) bestows upon the president the power to appoint Election Commissioners (ECs) and to specify the number of such commissioners. This has allowed the Union executive to decide on the number of ECs based on its political considerations. From the commencement of the Constitution on January 26, 1950 until October 1989, the ECI was a single-member body, with only a Chief Election Commissioner (CEC). Due to differences between the then CEC, RVS Peri Sastri, and the Rajeev Gandhi government over nomination process of 1987 presidential elections, the government decided to curtail CEC’s power by adding two more ECs to the commission just before the 9th Lok Sabha elections of 1989. However, this composition lasted for merely 70 days. Soon after coming to power, the National Front government of Prime Minister V P Singh abolished the post of two ECs in January 1990. For the next two years, the ECI continued to function as a single-member body. In 1991 the famous Mr. T N Seshan became the CEC. Terrorized by the assertion of power of the ECI by Mr Seshan, in October 1993 Narsimha Rao government decided to appoint two more ECs to restrict Seshan’s powers. Since then and till today, the Election Commission has been functioning as a multi-member body consisting of three election commissioners.

Appointment, Promotion and Removal

Appointments, promotions and removals are the key areas where politically inclined and susceptible candidates can be favored over the deserving ones. As evident from Article 324(2), ECs are to be appointed by the President subject to any Parliamentary law enacted in this regard. However, no such law has been made by the Parliament so far. Also, qualifications for a person to become EC have not been specified in the constitution. This effectively gives the Appointments Committee of the Union Cabinet the freedom to recommend anyone for the post of EC. In such a scenario, appointment procedure of ECs becomes the target of criticism when certain decisions of the ECI seem to be favoring a particular political party. This leaves scope for politicization of the ECI which further erodes the impartial image of the ECI.
As far as promotion or elevation of an EC to CEC is concerned, no provisions are given in the constitution. By convention senior most EC is appointed as the CEC as and when office of the CEC falls vacant. History of our democracy is full of examples where conventions were blatantly ignored and undeserving candidates were promoted to the highest constitutional offices in the country. The uncertainty of elevation by seniority makes ECs vulnerable to government pressure. Unsuccessful attempts have been made in the past to supersede deserving candidates in the ECI as well. Such attempts being successful in the near future are not unimaginable.
Independence of an office is often judged by the ease with which a person can be removed from the office. Easy removals reflect less independence. In this context, Article 324(5) provides that a CEC shall be removed from his/her office on the same grounds and in the same manner as that of a judge of Supreme Court. This provision provides one of the highest constitutional protections to the office of CEC and rightly so. Any office mandated to ensure promotion of democracy in the country ought to have such protection. The other ECs also deserve a similar kind of protection. But, Article 324 (5) says that ECs can be removed only after recommendation by the CEC. However, the final call on such removal rests with the Union executive. Thus the tenure of ECs is placed at the mercy of the CEC and the party in power. Politically inclined CECs may use this provision to manipulate honest and upright ECs.  The case of Mr Naveen Chawla fits aptly in this context. Mr Chawla was appointed as an EC in 2005. In 2009, the then CEC N. Gopalasawmi had recommended to the president to remove Mr Chawla as the EC for his links with the Indian National Congress. The Shah commission, formed to inquire into the atrocities committed during emergency of 1975-77, had concluded in an inquiry against Chawla that he was “unfit to hold any public office which demands an attitude of fair play and consideration for others”. Despite this, Mr Chawla went on to become the CEC in 2009.   

Conditions of service

Article 324(5) mandates that the conditions of service and tenure of the office of ECs shall be decided by rules made by the President subject to any Parliamentary law made in this regard. Accordingly, the Parliament enacted The Election Commission (Conditions of service of Election Commissioners and Transaction of Business) Act in 1991. As per the Act, ECs shall receive a salary which is equivalent to that of a judge of Supreme Court. The term of service shall be for 6 years. Initially the age limit for CEC is 65 years and for other ECs, it was 62 years; thus, making the other ECs junior to the CEC. This age limit was amended in 1991 making it 65 years for all the ECs. Hence, at present all the ECs stay in office till they complete 65 years of age or 6 years of service. In a way, this amendment made all the ECs equal in terms of salary and power which has led to reduction in the authority of CEC over other ECs.
Decision making 

Constitution is silent on the decision making procedure in the ECI. The Act of 1991 covers this aspect also. According to it, as far as possible, all decisions must be unanimously decided by the ECs. In case of difference of opinions, majority will shall prevail. The government can control a defiant CEC through the majority voting power of the two Election Commissioners. This provision has recently come in the limelight after Mr. Ashok Lavasa, one of the presently serving ECs, differed on a decision to give clean chit PM Modi for his electoral speeches. Though his dissent was overruled, the dissenting note was not included in the official order which gave clean chit to the PM. As a result, Mr Lavasa is protesting against this by not attending meetings with rest of the ECs. This has raised questions about transparency within the ECI and its decision making process.
Post retirement employment

Given the nature of work done by the ECs, it would have been pertinent to prohibit ECs from taking any lucrative employment after their retirement. But, no such prohibition is mentioned in the constitutional provisions. Appointment of Mr. MS Gill, former EC, as a minister under the UPA-I government (2004-2009) is one such example of lucrative post-retirement jobs. Hence, partisan decisions by ECs for post-retirement benefits cannot be ruled out. 
Way Forward

Given the criticism and allegations raised against the ECI in this election season, it is the right time to structurally transform the commission. Appointment, promotion and removal procedures need to be amended. In its 255th Report, the Law Commission of India recommended a collegium system for appointing Election commissioners. The collegium may comprise of the PM, leader of opposition in Lok Sabha and the chief justice of India. Also, at least some kind of qualification can be mandated so that only those individuals who have had prior experience in conducting elections are selected. This would further prevent political favoritism. For elevation/promotion seniority should be made the sole criteria, so that government cannot hide behind the logic of merit over seniority. Other ECs shall also be given the same constitutional protection against arbitrary removal as given to the CEC. Mere recommendation of CEC is too weak a protection for constitutional offices of such importance. The decision making process needs to be more transparent. As stated by Justice DY Chandrachud in one of his recent judgements , dissent is the safety valve of democracy. The nation should be aware of dissenting views among the ECs, especially in a case involving the PM. This would further establish the ECI as a transparent democratic institution. All the ECs should be debarred from accepting any kind of public or private lucrative post retirement employment offers. A recommendation of the ECI should be made mandatory before any ex-election commissioner takes up a new job. Necessary constitutional and legal amendments should be made to incorporate the fore-mentioned suggestions.
Constitutional institutions have generally been respected in our country; that respect cannot be taken for granted by the officials. The strength and credibility of an institution is tested when it buckles under political influence. It took the ECI years to establish itself as a strong, independent and impartial office. It was Mr TN Seshan in the 1990s who gave the ECI the face and the stature it enjoys today. This needs to be preserved to save and deepen the democratic values in the country as well as to maintain India’s reputation as the world’s largest democracy. One should never forget that Governments come and go, but the reputation of the EC stays for good.

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