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Events & Issues
New
Delhi, 19 July 2017
Selection of ECs
NEXT CONTROVERSY IN WAITING
By Dr S Saraswathi
(Former Director, ICSSR, New Delhi)
There is a legitimate expectation in the Constitution
that a law should be made on the selection process of Election Commissioners
(EC). This is an observation of the Chief Justice of the Supreme Court a few
days ago while admitting a PIL challenging the process of appointment of
Election Commissioners. It opens another issue concerning one of the most
important Constitutional bodies -- the Election Commission of India.
The situation has reached a stage where a
hint is made that the Supreme Court is likely to intervene if a law is not made
regarding appointment of ECs. The Chief Justice observed that the Chief
Election Commissioner (CEC) should be a “neutral person between political
parties. Appointment has to be in a
transparent manner”. The PIL came before the court a day after the appointment
of the next CEC for a period of six months.
The ECI has also demanded “contempt of court”
powers for itself to deal with unfounded allegations levelled against it from
time to time. Remember, the Constitution has vested the power of
superintendence, direction, and control of elections in the Election Commission
consisting of an Election Commissioner and such number of Election Commissioners
as fixed by the President from time to time.
Article 324(2) of the Constitution provides
for the appointment of CEC and other ECs by the President subject to the
provisions of the law made in that behalf by Parliament thus envisaging a law
to follow. This has not happened. They are appointed on the advice of the Union
government. There is no provision for consultation with political parties or
for Parliament approval. The Constitution makers must have conceived an
administrative body to handle elections according to set rules.
The Constitution also provides for
appointment by the President after consultation with the Commission of Regional
Commissioners considered necessary to assist the Election Commission in the
performance of its functions. The EC, constituted as a single-member body with
only the CEC in 1950, continued so till 15th October 1989. Then, for
a short period of a few months, it was made a three-member body. After swift
changes back and forth in the number of members, it was made a three-member
Commission from 10th October 1993. All three enjoy equal powers and
status with the CEC as the Chairman and hold office for a period of six years
or till the age of 65, whichever is earlier. Election Commissioners are equal
to Supreme Court judges in status.
The Constitution lays great stress on the
independence of the Election Commission and provides for removal of the CEC
solely by impeachment as in the case of Supreme Court judges. Support of two-thirds
majority in the Lok Sabha and Rajya Sabha on grounds of proven misbehavior or
incapacity is needed for impeachment. Other ECs cannot be removed without the
recommendation of the CEC.
In 2011, the then Chief Election Commissioner
suggested a Constitutional Amendment equating ECs with the CEC in the matter of
removal so as to strengthen the independence of the institution. His suggestion
came in the wake of the recommendation of his predecessor CEC for the removal
of an EC. The government did not agree.
Conditions of service and tenure of office of
the Election Commissioners and the Regional Commissioners are determined by the
rules of the government. Election work in States and Union Territories is
supervised by the Chief Electoral Officer of the State/UT subject to the
over-all superintendence of the EC as prescribed in the Representation of
People’s Act 1951. This officer is
nominated by the EC in consultation with the government of the State/UT.
Functional independence of the Election
Commission is somewhat limited. The administrative expenditure of the EC is not
charged on the Consolidated Fund of India as for UPSC and CAG, but is voted. It
has also no freedom in the appointment of its officers and staff like the
Secretariats of both Houses of Parliament and the Supreme Court. Hence,
functionally, the Election Commission is practically a department of the
government.
State Election Commissions have been
constituted under 73rd and 74th amendments of the
Constitution to conduct and control elections to panchayat bodies and
municipalities. The ECI has no role in conducting local body elections. A State
Election Commissioner is appointed by the Governor of the State which means by
the respective State governments.
The office in charge of managing matters
pertaining to elections in various democracies has several common features, but
not without vital variations. The idea of granting some amount of independence
to the body is acknowledged as a basic requirement to ensure free and fair
elections.
The Election Commission in Britain is an
independent body set up by the Parliament and answerable to it. The
Commission’s mandate has been set out in the Political Parties, Elections, and
Referendums Act, 2000 and ranges from regulation of public donations and
expenditure of political parties to promoting greater participation in the
electoral process.
The Chairman of the EC is appointed by the Speaker’s
Committee on the Election Commission, which is a body comprising nine MPs,
created under the said Act of 2000 to scrutinise the Election Commission. Four
Additional Commissioners serve on part-time basis who are nominated by leaders
of political parties, scrutinised by the Speaker’s Committee on the Electoral
Commission and approved by the House of Commons. Those nominated by the three
largest parties serve for a term of four years, while the Commissioner
nominated by a smaller party holds office for a two-year term. There are separate ECs for Scotland, Wales
and Northern Ireland. Since 2007,
regional offices across England have been constituted for East, South-East,
South-West, Midland, and North England.
The Australian Election Commission is a
statutory authority answerable to the Joint Standing Committee on Electoral
Matters of the Parliament of Australia. It consists of a Chairman who is a
sitting or retired judge of the Australian Supreme Court, the Election
Commissioner and a non-judicial member (usually the Australian Statistician).
The first two are part-time officials.
In Canada, the Chief Electoral Officer is
appointed for a ten-year period by a resolution of the Canadian House of
Commons. He is directly responsible to the Canadian Parliament and functions
completely independent of the government and political parties. He can be
removed only on a joint request following a majority vote by the House of
Commons and the Senate.
The first Commissioner of the EC constituted
in South Africa was appointed through a process of public nominations and an
interview as prescribed by the Constitution. The emphasis has always been on
professional expertise.
Thus there is no ideal method of selection
that can be considered as most democratic and absolutely neutral. Even the EC
of Britain which is answerable to Parliament has faced criticisms for many
lapses.
What is needed is an Election Commission free
from fetters and able to function independently without any pressure and ensure
free and fair elections. Professional electoral management marked by
impartiality and integrity must be our aim. It can be achieved by adherence to
Constitution and law whatever the mode of selection of the managers.---INFA
(Copyright, India
News & Feature Alliance)
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