The Provision of Appointment of Election Commissioners in India: A Critical Analysis

Profile of the Author: Sakshi Srivastav is a law student pursuing B.A.LL.B (Hons) from Rajiv Gandhi National University of Law, Punjab.

Introduction

Every nation requires a government to manage all its affairs. Such ruling bodies come to power via different methods, based on the form of government followed in a country. For instance, in a Monarchy, Monarchs get the sanction to rule on account of their descendence. Election by the citizens, on the other hand, is what sanctifies the rule of Democratic governments and some Authoritarian regimes. However, Democracies and such Authoritarian regimes that follow the procedure of Election for the formation of a government are by no means similar to one another. Free and fair elections are what differentiate the former from the latter.

India is a Democratic country. A detailed structure has been laid down in the Indian Constitution to ensure the sustenance of this democratic set-up. As far as free and fair elections are concerned, several provisions have been enshrined in our Constitution to achieve the said purpose, viz. establishment of an independent Election Commission of India, the principle of Universal Adult Suffrage, and the provision for regular elections, etc.

Free and fair elections are the sine qua non for the sustenance of democracy. The Election Commission of India (hereinafter referred to as ECI), an independent and autonomous constitutional body, has been entrusted with the task to carry out free and fair elections. Under Article 324 of the Indian Constitution, the ECI has been empowered to superintend, direct and control the elections to the Parliament, State Legislative Assemblies, and the offices of the President and the Vice-President.[1]

Appointment of Election Commissioners

The posts of a Chief Election Commissioner (hereinafter referred to as CEC) and Election Commissioners have been created under Clause (2) of Article 324, which provides for a CEC and such numbers of Election Commissioners as the President may appoint.[2] Before 1989, the ECI used to be a single-member body consisting of a Chief Election Commissioner. In 1989, the post for two Election Commissioners was created by issuing a notification under Art. 324 (2). [3] The Election Commission of India is thus a multi-member body consisting of a CEC and two Election Commissioners.

The Constitution of India does not prescribe any procedure for the appointment of Election Commissioners. Clause (2) of Article 324, an enabling clause, just mentions that an Election Commissioner shall be appointed by the President in consonance of any law made by the Parliament. [4] However, due to the absence of any parliamentary law on the same, the appointment of Election Commissioners is made by the President on the advice of the Union Cabinet as per the Transaction of Business Rules, 1961. [5] This rule is in agreement with the constitutional provision maintaining that the President must act on the advice of the Council of Ministers. [6] Thus, currently, the system of appointment of ECs in India follows an executive procedure, wherein the President makes the appointment on the aid and advice of the Union Cabinet.

Analysis

The procedure of appointment prescribed in the Transaction of Business Rules, 1961, is necessarily an executive procedure. It, therefore, provides the government of the day with the power to appoint the Election Commissioners. This power is prone to abuse given the possibility that the Executive may appoint Commissioner biasedly to fulfil its ulterior motives. The Commissioners so appointed may feel obligated to the government. This provision leads to a possibility of biased or coloured conduct on the part of the CEC and the ECs. This political vulnerability of the so appointed Commissioners gets further augmented under clause (5) of Article 324. Clause (5) provides the Chief Election Commissioner with independence in terms of removal. The Procedure for the removal of a CEC is the same as that of a Supreme Court Judge [7] wherein a parliamentary procedure is followed with no say of the Executive. The same independence is however not extended to the ECs who can be removed by the President on the recommendation of the CEC. [8]

These two provisions seriously jeopardize the independence of the Commissioners to discharge their functions impartially and thus, are a blotch on the autonomy of this Constitutional body.

What can be done?

I strongly believe that in order to ensure freedom from any kind of executive influence on the ECI, it is obligatory to do away with the existing procedure of appointing Election Commissioners.

The mode of appointment of the ECs has been a point of contestation for a long time. During the Constitutional Assembly Debates (CAD), Mr Shiban Lal Saxena, a member, raised the issue of independence in the appointment of Election Commissioners by suggesting that any nomination by the President must be approved by 2/3rd majority of the Parliament. [9] This suggestion was however rejected.

In furtherance of this, various reports have been published suggesting a collegium system of appointment, wherein appointments shall be made by the President in consultation with a selection committee/collegium so formed. Dinesh Goswami Report on Electoral Reforms, 1990, was one such report. It recommended the establishment of a Selection Committee for the said purpose. [10] Similarly, the Law Commission Report on Electoral Reforms, 2015, also suggested the formation of a collegium, consisting of the Chief Justice of India, the Prime Minister and the Leader of Opposition, to provide consultation to the President on such matters of appointment. [11]

The former CEC of India, Mr S Y Quraishi, has himself stated that the current procedure of appointment of Election Commissioners should improve and a collegium system must be introduced. [12] Recently, in December 2019, the Supreme Court has decided to hear a PIL seeking appointment of Election Commissioners by a three-member collegium system to make the already independent ECI more independent. [13]

Conclusion

The ECI is an independent and autonomous body, however, the provision of appointment of Election Commissioners poses a prospective threat to its independence. The prevailing lacuna in the appointment of the ECs directly questions the efficiency of the ECI in conducting free and fair elections in India. It not only opens the door for possible abuse of power on the part of the Executive but also puts the interest of the opposition in jeopardy. The said provision of appointment thus, perilously looms over the truest principles of democracy that India stands for. Therefore, doing away with the said provision is a democratic need.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

FAQs

Q. What are the main categories of electors in India?

Ans. There are 3 categories of electors in India: –
(i) General electors,
(ii) Oversees   (NRI)   electors,
(iii) Service Electors.

References

[1] INDIA CONST. art. 324, cl. 1.

[2] INDIA CONST. art. 324, cl. 2.

[3] M P JAIN, INDIAN CONSTITUTIONAL LAW 855 (Lexis Nexis, 8th ed. 2018).

[4] INDIA CONST. art. 324, cl. 2.

[5] Snehil Kunwar Singh, How Can We Constitute a More Impartial, Non-Partisan Election Commission? THE WIRE (Apr. 11, 2019, 14:36 PM), https://thewire.in/government/election-commission-independence.

[6] INDIA CONST. art.74, cl. 1.

[7] INDIA CONST. art. 324, cl. 5.

[8] INDIA CONST. art. 324, cl. 5.

[9] Pranav Tanwar & Saurabh Pandey, Independence in appointment of election commissioner: A foundational imperative reform, COUNTERVIEW. ORG (May 4, 2019), https://counterview.org/2019/05/04/independence-in-appointment-of-election-commissioner-a-foundational-imperative-reform/.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] SC to hear after four weeks PIL seeking greater autonomy for ECI, THE ECONOMIC TIMES (Dec. 3, 2019, 3:40 PM), https://economictimes.indiatimes.com/news/politics-and-nation/sc-to-hear-after-four-weeks-pil-seeking-greater-autonomy-for-eci/articleshow/72347810.cms.