A long-pending issue of the appointment procedure of election commissioners (ECs) has finally reached a decisive stage with the Supreme Court (SC)’s Constitution bench reserving judgment on four public interest litigations (PILs) that asked for directives to the Centre for setting up a neutral and independent selection panel to recommend names to the President for appointing chief election commissioner (CEC) and ECs.
The main issue is why the government has not passed an act to lay down the procedure regarding the appointment of the CEC, conditions of service and tenure of office despite the expectation of Article 324 of the Constitution. Without any law, the government has been appointing CECs unilaterally at its discretion.
Globally, a constitutional appointment of this nature is made by a comprehensive consultation between the government and the Opposition. In many countries, there is parliamentary scrutiny of the names. So, it is surprising that the executive has been appointing the most powerful election commission in the world unilaterally. This raises the possibility of questions about the incumbent’s neutrality. Fortunately, for most of the seven decades, such questions have been raised only on some occasions and the incumbents have acquitted themselves honourably in all cases, except recently.
The Constitution bench observed that neutrality is important so that CEC is able to take on even the prime minister (PM). This may sound like a tall order in the current context, but in practice, there have been occasions when CEC has gone against the PM, even declaring the election null and void.
Another question that the court has raised is over how during the last two decades, no CEC has completed a tenure of six years. The bench has linked this truncated tenure to an attempt to control them. This interpretation is undoubtedly erroneous and reflects that the SC needs to appreciate the context fully.
In 1993, the government enacted The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, creating a multi-member commission with equal rank and pay and the tenure of the commissioners and CECs. Most importantly, all three have an equal vote. Since then, a commission member is first appointed as EC, and later, the senior most elevated to the post of CEC. However, since the appointment is only for one term of six years, there is no possibility of a CEC completing six years.
The combined tenure of the two posts is what we need to see. In most cases, it is at least five years as the officers are mostly appointed after retirement as secretary to the Government of India at 60, and go on till 65, the retirement age for CEC. I completed a tenure one month short of six years as I was appointed at 59 when I still had one year to retire. This age limit is also valid for the Chief Justice of India, many of whom had similar short terms. Therefore, linking it with the question of controlling them is incorrect.
The 1991 Service Act (and its amendment in 1993) doesn’t list qualifications for the job or the appointment procedure. Instead, it prescribes 65 years or six years of service (whichever is lower) as the retirement age.
By convention, all appointments to the posts of CEC have been of civil servants from the Indian Civil Service, Indian Administrative Service (IAS) or law secretaries. Two of them have been from income tax services as well. This makes perfect sense as these officers have long experience conducting or monitoring elections. IAS officers particularly have worked as presiding officers of polling stations, returning officers in Vidhan Sabha and Lok Sabha elections and, often, as election observers. Indian Revenue Service officers have been deployed on election duty as expenditure observers since the 1990s. It is just as well that two of them have gone on to become CECs. The fact that India is regarded as a global guru in elections proves that the system has worked well. Former United States secretary of state Hillary Clinton even called the Indian election a gold standard.
The other important question the SC raises is about the incumbents’ independence and neutrality. This is linked with the security of tenure. While the Constitution has provided security of tenure to the CEC by providing protection against removal except through impeachment, similar to a judge of the SC, this protection has not been extended to the other two members. This is one flaw which the SC must address. After all, constitutional protection was meant to be for the institution and not for an individual. This has serious operational implications for the autonomy of the institution. The two commissioners may feel vulnerable without protections against removal and no guarantee of elevation by seniority. They may feel they are on probation and hesitate to take decisions that may not be to the government’s liking. Worse, they can control an independent-minded CEC by outvoting him as often as they like, making him ineffective.
India is the largest democracy in the world, and the world looks up to it as a model. We need to ensure that nothing is done that erodes its credibility. There are areas where improvements are called for. The EC has been sending proposals to the government for electoral reforms for over two decades without success. The matter is now in the safe hands of the SC, which has been the guardian angel of democracy and responsible for some of the most far-reaching reforms, such as transparency about the criminal and financial antecedents of candidates.
SY Quraishi is the former Chief Election Commissioner of India and the author of An Undocumented Wonder – The Making of the Great Indian Election
The views expressed are personal.
