The Election Commission of India, which once enjoyed high trust and credibility, is no longer considered a neutral and non-partisan body. It has invited charges of partisanship for many of its decisions which have unfairly benefitted the BJP. It redeemed itself somewhat on Wednesday by acting on the Modi biopic and NaMo TV, but only under tremendous pressure from civil society and after the Supreme Court asked it to take a call on the issue. The conduct of free and fair elections is the most essential feature of a democracy and it is a matter of serious concern if the Election Commission is found wanting in that respect. The Chief Election Commissioner (CEC) and the members of the commission should resist all pressure from the government or any other source. But the right conduct of the commission should not be left to the sense of values and responsibility and strength of character of the incumbents. The time has come to change the institutional process of appointment to the commission so that the CEC and the members command the trust and faith of the opposition and the people, too.  

The Constitution prescribes that the appointments be made on the basis of a law passed by parliament. But this was not done and the appointments are now made by the President on the basis of the Union cabinet’s recommendations. The selection criteria adopted by the government are not known. It has always been retired bureaucrats in the government’s good books who have been chosen and appointed. So, the appointment often becomes a matter of political or personal choice. Some incumbents rise above politics and personal predilections and do justice to their office. But that is not always the case. So, there is the need to adopt a better selection and appointment procedure.

The Supreme Court has proposed that parliament may enact a law laying down a procedure of appointment. It has said it could not direct parliament to enact a law but said there may even be judicial options to change the existing procedure. A petition on the issue is pending before a constitution bench of the court. The Law Commission has suggested that the CEC and other commissioners may be appointed on the basis of recommendations made by a panel consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. This is the procedure for the appointment of the CBI director, the Central Vigilance Commission and the Central Information Commissioner. This process can also be abused, but there are better checks and safeguards in it. The present system is faulty and arbitrary and should be replaced by one which will make the selection and appointments more transparent and give more credibility to the constitutional body.