Election Commission of India
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Election commissioners, selection of
Debates in Constituent Assembly, 1949; subsequent changes
Right from the time the Constitution was being finalised through debates in the Constituent Assembly in 1949, there has been unanimity that elections must be insulated from executive interference.
The Fundamental Rights Committee had recommended recognising “independence of elections and the avoidance of any interference by the executive in the elections to the legislatures“ as a fundamental right. But, after long debate, the Constituent Assembly , in the words of B R Ambedkar, resolved that “while there was no objection to regard the matter as of fundamental importance, it should be provided for in some other part of the Constitution and not in the chapter dealing with fundamental rights“.
The original draft Constitu tion had provided that the chief election commissioner and election commissioners would be appointed by the President.Many members had expressed reservations over giving unbridled powers to the PM to choose a person of his choice as the CEC. They felt such a personalised selection process was sure to impede the independence of the commission.
This had forced Ambedkar to amend the original draft provision. The amended version, which is now Article 324(2), said, “The Election Commission shall consist of the CEC and such number of other election commissioners, if any, as the President may from time to time fix and the appointment of CEC and other election commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.“
`Subject to law made by Parliament' was inserted to keep the doors open for devising a suitable mechanism in future. For four decades, the EC was a single-member body with the CEC as its head. From October 16, 1989 till January 1, 1990, it became a three-member body . From January 2, 1990, when T N Seshan became CEC, and up to September 30, 1993, it again became a singlemember commission.
For decades, the commission was subservient to the ruling party -in fixing poll schedule and blinking at electoral malpractices. Seshan changed it all. He gradually assumed grotesque independence and recklessly cracked the `model code of conduct' whip. He refused all requests from the ruling party, even for postponement of bye-elections involving Sharad Pa war and Pranab Mukherjee.
An upset government brought an ordinance in 1993 to rein in the “too independent“ CEC. It appointed two more election commissioners and gave them equal status with that of the CEC. An angry Seshan challenged the validity of the ordinance in the Supreme Court. A five-judge bench rebuffed Seshan [1995 (4) SCC 611] and upheld appo intment of the two ECs.
In the past, the SC had never commented on the process for selection and appointment of CEC and ECs. In 2006, then CEC B Tandon had written to then President A P J Abdul Kalam proposing a sevenmember collegium headed by the PM for selection of CEC and ECs. The other members in the proposed collegium were Lok Sabha Speaker, law mi nister, leaders of opposition in LS and RS, an SC judge nominated by the CJI and deputy chairman of RS.
Three years later, then CEC N Gopalaswami wrote to then President Pratibha Patil proposing a six-member collegium headed by the PM for selection of CEC and ECs. the collegium proposed by Gopalaswami excluded the SC judge. Both Tandon and Gopalaswami had said such collegiums were in action for selection of central vigilance commissioner and chairman and members of National Human Rights Commission. When Navin Chawla was set to become the CEC, BJP leaders L K Advani and Arun Jaitley had whole-heartedly supported the concept of a collegium for selection of the CEC and ECs.
Last week, the SC picked the threads from the ex-CECs' letters and asked the government, “The President appoints the CEC and ECs. The Constitution says it will be subject to any law enacted by Parliament. But till date, no law has been enacted. In such a scenario, in the absence of a law and till Parliament legislates on this issue, would it not be appropriate to institutionalise the appointment process by laying down certain norms?“ Maintaining independence of the CEC and ECs and keeping them free from political masters was the main object behind the SC's query .The NDA government opposed and said, “Rightly or wrongly , Parliament has decided not to enact a law. If Parliament says there is no need for a law, can the Supreme Court step into the legislative arena and attempt to fill the perceived gaps which do not exist? This will be improper on the part of the court.“
Given the earlier statements of Advani and Jaitley , the NDA government may not have difficulty in drafting a bill for introduction in Parliament. But the government and the SC must remember the golden words of caution uttered by K M Munshi in the Constituent Assembly on independence of the EC, which he felt would have a large army of officials given the enormity of the task entrusted to it.
“Now, all this army cannot be set up as a machinery independent of the government. It is not possible nor advisable to have a kingdom within a kingdom, so that election matters could be left to an entirely independent organ of the government. A machinery , so independent, cannot be allowed to sit as a kind of super-government to decide which government shall come to power. There will be great political danger if the Election Commission becomes such a political power in the country .“
See also
Chief Election Commissioners Of India
Election Commission of India
Election laws, rules. procedures: India
Elections in India: behaviour and trends (2014)
Elections in India: behaviour and trends (historical)
