• There is an urgent need to reform the functioning of the ECI

    Will a judicial member help salvage its reputation?

    SK Mendiratta

    May 22, 2019

    The independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be regarded as a fundamental right and provided for in the chapter dealing with fundamental rights,” Dr B R Ambedkar said, during the debate on the Article 289  of the Constitution of India. He was quoting from a report of the committee appointed to deal with the chapter on fundamental rights. Not only did this point to the significance the Constituent Assembly placed on the free and fair exercise of our franchise in a new democracy, but to also their concern that perhaps our vote would need the overarching protection of the Constitution of India.

    While in its final form, the chapter on the conduct of elections came to be included under a separate article of the Constitution – Article 324 –  Dr Ambedkar then went on to give us  the background to why the Constituent Assembly felt compelled to create a single independent body to conduct the elections to both the state legislatures and the Lok Sabha.

    “… the original proposal under Article 289 was that there should be one Commission to deal with the elections to the Central Legislature, both the Upper and Lower Houses, and that there should be a separate Election Commission for each Province and each State … Comparing that with the present Article 289, there is undoubtedly a radical change. This Article proposes to centralise the election machinery in the hands of a single Commission … this change has become necessary because today we find that in some of the Provinces in India, the population is a mixture

    “It has been brought to the notice both of the Drafting Committee as well of the Central Government that in these Provinces the executive government is the instructing or managing things in such a manner that those who do not belong to them either racially, culturally or linguistically, are being excluded from being brought on electoral rolls.

    In order, therefore, to prevent injustice being done by Provincial Governments to people other than those who belong to the province racially, linguistically and culturally, it is felt desirable to depart from original proposal of having a separate Election Commission for each province … this new change has been brought about, namely, that the whole election machinery should be in the hands of a Central Election Commission”.

    Key issues under Article 324

    Article 324 contains six clauses that deal with the conduct of elections and the composition of the Election Commission of India (ECI).

    My article will deal specifically with Article 324, clause (2) which  prescribes the composition of ECI and clause (5) which while laying out the conditions of service of the Chief Election Commissioner (CEC) and the election commissioners (EC),  also puts in place an important constitutional safeguard to protect these officers from undue pressure. Clause 5 stipulates that the CEC can only be removed from office “in like manner and on like grounds as a Judge of the Supreme Court”.  It is further provided that the conditions of service of CEC once prescribed shall not be varied to his disadvantage after his appointment.  In so far as the ECs are concerned, this clause provides that they will not be removed from office except on a recommendation from the CEC.

    A truly free Election Commission

    The Constitution has envisaged the constitution of the ECI as an independent constitutional authority, free from political and executive interference in the matter of its functioning.  

    From the date of its inception in 1950 till October 1989, the ECI functioned as a single member body when two ECs were appointed for the first time for the President under Article 324(2). But this multi-member arrangement was short-lived and, on January 1, 1990, the ECI was again converted into a single member body. Since October 1993, however, the ECI has been functioning as a three-member constitutional authority.

    What is interesting however is that even though the Constitution contemplates that the Parliament will lay down the manner in which the President appoints the CEC and ECs,  it has been seven decades since the ECI’s inception and no such law has yet been made.

    Prime Minister’s choice vs a collegium: recommendations gathering dust

    All appointments of CECs and ECs have so far been made by the President on the aid and advice of his Council of Ministers – in other words, the persons chosen by the then incumbent Prime Minister. The executive governments of the day have obviously found this system of appointment of CECs and ECs more suitable to subserve their interests and that is why they have not insisted up the Parliament to make a law which may take away from them the power of making such appointments.

    In 1990, the Goswami Committee on Electoral Reforms had recommended that the President should appoint the CEC in consultation with the Chief Justice Of India and the Leader of Opposition in the Lok Sabha.  A Bill was also introduced in May 1990 which sought to provide that the CEC would be appointed by the President in consultation with the Chairman of the Rajya Sabha, Speaker of the Lok Sabha and the Leader of the Opposition in the Lok Sabha. The CEC was also sought to be made a part of this consultation process in the matter of appointment of ECs.  But this Bill never saw the light of day. It was withdrawn by the government in 1993.

    Again, the Law Commission in its 255th Report of May 2015 endorsed the views of the Goswami Committee and recommended that the CEC and ECs should be appointed on the basis of the recommendations of a three-member Selection Committee, comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. The Law Commission also recommended that the ECs should get elevated as CEC on the basis of their seniority unless the three-member Selection Commission found an EC unfit for reasons to be recorded in writing.  The Law Commission’s recommendations also, unfortunately, appear to be gathering dust in the dark recesses of the Law Ministry.

    Silver lining

    There is however a silver lining.  The Supreme Court is now seized of this issue on the basis of a writ petition that has been filed by an advocate and the case has been referred to a Constitution Bench of the Apex Court for examination. Several retired CECs have also gone on record to endorse a proposal that the CEC and ECs be appointed through a collegium system.  This consultative process will save the ECI from accusations that they are mere appointees of this government of the day.

    It is pertinent to add that even in the case of some statutory bodies, like, Central Vigilance Commission, Central Information Commission, Intelligence Bureau, the appointments of their members are made through a consultative process.

    A new proposition – a judicial member?

    In this context, it will not be out to place to make a suggestion which has never been made so far to my knowledge and which may perhaps not be to the liking of some of my friends and former colleagues.  

    The ECI is a regular three-member body. The time has now come when one of these members should be a judicial member belonging to the higher judiciary, –  a sitting judge of the Supreme Court or a judge of a High Court eligible to be elevated to the apex court.  

    I am suggesting keeping in view two points. 

    • The ECI performs several important functions under the Constitution and statutory law which are quasi-judicial in nature.

    These include tendering opinions to the President and Governors of the states under Articles 103(2) and 192(2) of the Constitution on questions of disqualifications of sitting members of Parliament and State Legislatures. These opinions of the ECI are binding on the President and Governors; opinions to the President under section 8A of the Representation of the People Act, 1951 on the question of disqualification of a person who has been found guilty by the High Court or the Supreme Court of having committed a corrupt practice at an election to Parliament or a State Legislature on the trial of an election petition or election appeal; determination of disputes between rival groups or sections of recognised National and State political parties under the provisions of the Election Symbols (Reservation and Allotment) Order, 1968 etc

    • The Constitution equates the CEC in the matter of his removal from office to a judge of the Supreme Court. Further the CEC and ECs have been given the same salaries, allowances and perks as are allowed to a judge of the Supreme Court under the provisions of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

    ​In Bhagwati Prashad Dixit Ghorewala vs Rajiv Gandhi (AIR 1986 SC 1534), the Supreme Court had rejected the contention that the CEC should have the same qualifications as those of a judge of the Supreme Court.  But it has to be borne in mind that ECI was then a single member body comprising only the CEC; it now is a three-member body making a significant change in its composition.

    Insufficient constitutional safeguards, a helpless ECI

    The ECI was established as an independent constitutional authority, free from interference by political and executive authority in the matter of its functioning. But has the Constitution made sufficient safeguards to translate the wishes of the constitution-makers into a real guarantee of its independence?  I am afraid, not in my view.

    Clause (5) of Article 324 provides that the CEC shall be removed from office only in “like manner and on like grounds as a Judge of the Supreme Court”.  But what about the other ECs appointed under clause (2) of that  Article?  They serve at the mercy of the government and of the CEC. If the government of the day and the incumbent Chief Election Commissioner found any one of the ECs inconvenient, they could easily remove them by executive fiat, as there is no constitutional protection for them, as there is for the CEC. The Constitution must guarantee the independence of the Election Commission as an institution as a whole and not merely of the head of that institution.  

    The budget and administrative expenses of the ECI must also be a ‘charge’ on the Consolidated Fund of India, like, the budget of the Supreme Court, Comptroller and Auditor General of India and the Union Public Service Commission, and not subject to debates and cuts by Parliament.  The Pakistan Election Commission is known to boast in international fora that their expenditure is charged on the Consolidated Fund of Pakistan. 

    Furthermore, though Article 324(6) of the Constitution provides that the President and the Governors of the States will be obliged to provide such staff to the Election Commission as may be necessary for the discharge of its functions under the Constitution, paradoxically, the Election Commission cannot have the staff of its liking even in its own Secretariat. It is the Ministry of Law and Justice and Department of Personnel and Training who frame the recruitment rules for the officers and staff of the Election Commission.  Most of its senior officers come on deputation as Deputy Election Commissioners, Directors General and so on, for a limited period, making many of them diffident in dealing with the matters pertaining to their parent states because they know they will have to serve under the incumbent state machinery on their repatriation.  

    Still, further, the Election Commission is totally helpless when somebody calls it ‘Dhritrashtra’ and alleges that it is acting at the behest of the ruling party, committing, in my view, the gravest form of contempt of this constitutional institution.  

    There is, without doubt, an urgent need for immediate reforms – reforms that will further strengthen the hands of the Election Commission and ensure its independence and autonomy.

    [This is a replug of the original published on April 28, 2019.]


    First published in The Leaflet.

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