EC appointments system needs reform

The Supreme Court has rightly expressed its concern over the erosion of independence of the Election Commission and the absence of a law governing the appointments of the Chief Election Commissioner (CEC) and the Election Commissioners. It has also red-flagged the “disturbing trend” of successive CECs being handicapped by short tenures over the past two decades. A five-judge bench headed by Justice K M Joseph hearing petitions seeking reform in the EC appointments has pointed out the deficiencies in the present system. It has said that free and fair elections are the bedrock of democracy and those conducting them should be a person of character, capable of resisting pressure and of acting against even a Prime Minister if necessary. Article 324 of the Constitution, which pertains to the Election Commission, does not mention any criterion for the appointment of Commissioners or about their service conditions. A law enacted in 1991 states that the CEC or an Election Commissioner shall hold office for a term of six years or till the attainment of the age of 65 years. However, after T N Seshan, no officer has served a full term.

The length of tenure is not the main issue. The important issue before the court is the method of appointment of the Commissioners. Article 324(2) envisages a parliamentary law on such appointment, but the law has not been made. The court has made a suggestion for selection by an independent body in which the Chief Justice of India (CJI) is also a member. The bench observed that this would help to ensure “neutrality” in the functioning and decisions of the EC and the selection of a person who “does not allow himself to be bulldozed”. The court sought the files pertaining to the appointment of a new Election Commissioner, Arun Goel, whose appointment was clearly made in a hurry. The 1985-batch IAS officer got approval for voluntary retirement from service in a single day in violation of norms, his file was cleared by the Law Ministry, a panel of four names were put up before the Prime Minister, and Goel’s name was sent to and obtained the President’s nod, all within 24 hours. Clearly, he was handpicked for the position, and that is not how a constitutional position is to be filled.

The court seems to be thinking of creating or proposing a mechanism for appointment. The importance of the EC’s position demands that the selection procedure is credible and transparent. A selection committee in which the Prime Minister, the Leader of the Opposition and the CJI are members will have better credibility and will certainly be an improvement on the present procedure. Ideally, Parliament should lay down such a procedure by legislation.