How to cement the Election Commission’s credibility

Source: The post is based on the article “How to cement the Election Commission’s credibility” published in the Indian Express on 26th November 2022.

Syllabus: GS – 2 – Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

Relevance: About the independence of the Election Commission.

News: The Constitution Bench of the Supreme Court is hearing a series of petitions seeking functional independence for Election Commissioners. The petitioners pleaded for the creation of an independent collegium or selection committee for the future appointment of CEC and ECs.

About the case

What are the court’s observations regarding the appointment of Election Commissioners(ECs)?

How the constitution ensures the autonomy of the Election Commission?

The Constitution intended the Election Commission of India(ECI) to be fiercely independent and vested it with enormous powers of superintendence, direction and control over all elections.

The apex court has repeatedly adjudged these powers to be absolute and unquestionable. The court also declared that Article 324 is the reservoir of all powers of the ECI and declared free and fair elections to be part of the basic structure of the Constitution.

About previous demands for creating a collegium or selection committee for appointing ECs

In its 255th Report, the Law Commission of India also recommended a collegium system for appointing Election Commissioners.

Political stalwarts and many former CECs including BB Tandon, TS Krishnamurthy have supported the idea, even while in office.

In a recent debate on electoral reforms in the Rajya Sabha, many political parties demanded the introduction of a collegium system.

What about the performance of the ECI so far?

For much of Indian democracy’s history, the ECI has performed very well, earning accolades not only from the citizens of India but the world.

The track record of most Chief Election Commissioners (CECs) was exemplary in displaying independence and neutrality. There has to be an institutional mechanism to ensure the independence and neutrality of the ECI.

What are the concerns associated with Election Commissioners?

ECs can be influenced by the Executive: B R Ambedkar’s said in the Constituent Assembly that “the tenure (of ECI) can’t be made a fixed and secure tenure if there is no provision in the Constitution to prevent” a person “who is likely to be under the thumb of the executive”.

Elevation of an Election Commissioner to the post of CEC: This makes ECs vulnerable to government pressure. They might be always conscious of how their conduct is viewed by the government, which can exploit this fear.

Might damage the independence of the commission: Since all three members have equal voting rights and all decisions in the commission are taken by the majority, the government can even control an independent-minded CEC through the majority voting power of the two Election Commissioners.

Provision for the removal of Election Commissioners: Only the CEC is protected from being removed (except through impeachment). The Constitution enabled protection for the CEC as it was initially a one-man Commission.

Logically, this should have been extended to the other two Commissioners, who were added in 1993. But this is not done intentionally.

Why the judiciary may not be the best selector of election commissioners?

What should be done?

Nowhere in the world does the government of the day unilaterally appoint the election commissioner. It is always by a collegium or even a full parliamentary scrutiny or interview. Hence, it is time for India to adopt such system.