Insights into Editorial: The post and the person: on strengthening the EC
PIL for creating Independent Mechanism to appoint CEC and ECs:
The Constitution Bench of the Supreme Court is examining a public interest litigation (PIL) that could be critical for Indian democracy.
The PIL, which seeks the strengthening of the Election Commission of India (ECI), includes a proposal to create an independent mechanism to appoint the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
At present, CEC and ECs are simply appointed by the government of the day, without any defined criteria or processes.
Election Commission of India:
Election Commission of India (ECI) is a constitutional body under Article-324 vested with the responsibilities of superintendence, direction and control of conduct of elections. It consists of a Chief Election Commissioner and two Election Commissioners.
Article 324 states that the Election Commission shall consist of Chief Election Commissioner and such numbers of other Election Commissioners, if any, as the President may from time to time fix and appointment of CEC and other ECs shall, subject to provisions of any law made in that behalf by the Parliament, be made by the President.
Though the ECI has since become an institution of some authority, there have been controversies over appointments of ECs, allegations of partisanship, and new problems such as of voter bribery and paid news, which the ECI has not been able to address so far.
Three critical decisions taken by Constituent Assembly:
When the Constituent Assembly debated how free and fair elections should be ensured, three important questions arose.
The first was whether free and fair elections should be made a part of fundamental rights or an independent institution, outside the executive, should be established to conduct the elections.
- The Assembly opted for the latter and created the ECI.
- With legal back up and the resources to develop and enforce a transparent electoral system, the ECI made free and fair elections a reality.
The second critical decision was to have a single, centralised body for elections to the Lok Sabha and State legislatures.
- One proposal was that the ECI be confined to federal elections, and separate institutions be set up to conduct elections to State legislatures.
- However, with increasing tension among communities, the Assembly feared partisan action in the States and opted for a single national institution, the ECI. The implications of this decision were complex.
- It was debated whether to have a single, centralised body for elections to the Lok Sabha and State Legislatures. One proposal was that ECI be confined to federal elections and separate institutions to be set up to conduct elections to State Legislatures.
- At that time, the Assembly feared partisan action in the States and opted for a single national institution.
The third question concerned ensuring the independence of the ECI.
- Independence of the ECI, the manner of appointment of the CEC and ECs was debated.
- One member proposed ratification of CEC’s appointment by the Legislature, but the Constituent Assembly disagreed and it simply provided for the CEC to be appointed by the President, leaving it to the Legislature to enact a suitable law.
- The Constituent Assembly did provide that the CEC could only be removed through the process that of Supreme Court Judge. For the Election Commissioners, even this safeguard was not provided.
Present Issues that are in Concern with ECI:
The Election Commission of India (ECI) has sought complete independence from government control.
At present only, Chief Election Commissioner has security of tenure. Also, its budget is not a charged expenditure, but is voted by the Parliament.
There should be a provision either in law or by some government resolution that the senior most EC should be automatically elevated as CEC in order to instil a feeling of security in the minds of the ECs and that they are insulated from executive interference in the same manner as CEC.
At present, there is no specific provision in the law to this effect and commission has to resort to extraordinary powers under Article 324 of constitution which, it feels should be used sparingly.
If it is approved by the Law Ministry, the poll panel will be free to frame its own recruitment rules and shortlist and appoint officers on its own. It can then also draw competent professionals and experts from the job market.
There should be publicly reprimanded for politicians for violating the Model Code of Conduct, postponed/ cancelled elections if their credibility was compromised, intensified supervision of elections, and insisted on action against errant officials.
It has also sought absolute financial freedom from the Law Ministry. Like the CAG and UPSC, the ECI wants its budget to be ‘charged’ to the Consolidated Fund as opposed to the current practice of being voted and approved by Parliament.
ECI has also proposed an independent secretariat for itself with which it will not have to depend on DoPT to appoint its officers.
There is a need for constitutional protection for all three of its members as opposed to just one at present. Its two Election Commissioners can be removed by the government on the recommendation of the Chief Election Commissioner.
The ECI wants print media to be included in Section 126 of the RP Act. This section currently prohibits publication of ads by political parties in electronic media (TV, radio) and recently added social media, 48 hours before voting ends.
The ECI sought amendment to RPA to include specific powers to postpone or countermand polls on the grounds of use of money power.
ECI has been ensuring democratic transfer of political power from one set of representatives to other since independence.
However, in recent times, it is embroiled in various issues & controversies such as EVM malfunctioning, announcement of election dates to benefit ruling government, money and muscle role in elections etc.
During the 1996 general election, the ECI restored the credibility of the election process. The CEC, T.N. Seshan, reinterpreted the ECI’s role and powers, and provided combative, forceful leadership.
As history shows, inadequate leadership is the bane of our public institutions. Safeguards to ensure that ethical and capable people head them are crucial.