It is a ironic that the world’s largest democracy, in which the Election Commission of India (ECI) conducts the world’s biggest exercise of holding elections involving millions of voters, has a flawed system of appointing the members of the Commission.
The government of the day has the sole power to arbitrarily appoint election commissioners, some of whom go on to become the Chief Election Commissioners, without making public the criteria for selection.
This is unlike the appointments for other critical posts such as Director of Central Bureau of Investigation (CBI), Chief Vigilance Commissioner (CVC) and Chief Information Commissioner (CIC) where a collegium consisting of the Prime Minister, the Leader of Opposition and the Chief Justice of India select the incumbent.
In some of the other democracies the appointment of Chief Election Commissioner (CEC) is made by their Parliament through select committees and in some others a public televised debate takes place before the candidate is selected.
Another flaw in that appointment and terms of the service of the members of the ECI is that while the CEC enjoys immunity against removal, except through impeachment, the same protection is not provided to the election commissioners.
While the general practice is to appoint the senior most election commissioner as the chief but their tenure as commissioners is a kind of probation in which they avoid to rub the government on the wrong side.
The recent case of an election commissioner questioning the campaign by the prime minister is a case in point. The election commissioner concerned had to face the wrath of the state agencies and saved his skin by preferring to resign from the job.
Till 1993, when the government enacted The Election Commission (Conditions of service of Election Commissioners and Transaction of Business) Act, 1991, there was provision for only the Chief Election Commissioner. After the amendment two election commissioners were appointed but were not extended the same immunity against removal as that for the CEC.
The amendment was brought in during the tenure of all powerful TN Seshan as the CEC. He used the powers of the CEC in the most effective way and it was commonly known that the politicians dreaded him.
Seshan used or threatened to use his powers to cancel elections or disqualify candidates if they breached the law on campaigning or expenditure permitted during electioneering.
So much so that even the cost of serving tea and pakoras was included in the total expenditure permissible. In his own words, he would “eat politicians in breakfast” and conducted the affairs of the commission with an iron hand for six years.
The Supreme Court, which has currently reserved its orders on the procedure for appointment of the members of the election commission, too referred to the effective measures taken by Seshan and has pointed out that it was rare to have officers like him.
Despite the lack of transparency in the selection of commissioners, the ECI had been running the show with fairness and objectivity but that has not been the case for the last few years.
The bias by the Commission during the recent years has been obvious. Whether it relates to fixing dates of elections convenient to the government or enforcing model code of conduct depending on the suitability of the ruling party, the commission has not been perceived to be fair.
Even during the time of Covid pandemic it refrained from banning public rallies till the Prime Minister had completed his last planned rally.
The hurry to conduct the elections in Himachal and the long rope given in Gujarat, even though the counting is to be done on the same day, too smack of favouring a particular party.
The commission turning a deaf ear to communal and provocative statements by a section of politicians is too well known to be recounted here.
Also Read: Can the Supreme Court appoint a Chief Election Commissioner?
In another recent instance, it first opted to stay clear on the issue of freebies offers by political parties when Supreme Court asked it to intervene. However after the prime minister expressed his views on the subject, the commission took a u-turn and sought to give notices to political parties on the issue.
Also Read: Election Commission’s U-Turn on Freebies
Hopefully the Supreme Court would help insulate the system by ensuring appointment of officers with a spine and credibility.
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