Independence in appointment of election commissioner: A foundational imperative reform

9 min readMay 4, 2019

Former Chief Election Commissioner, Mr. S.Y. Quraishi recently in an interview to The Hindu (April 19, 2019) said, “The appointment to the Election Commission must improve. Right now, the Election Commissioners are appointed by the government of the day and they might feel beholden to the government or the government might feel that they should be beholden…A collegium system of appointment should be considered.” This problem goes to the root of public perception about the Commission’s prejudice during elections.

The Commission has always been the center of attention and news during elections and 2019 general election were no exception. In proceedings last week at the apex court, the Commission had tough time explaining its power and in discrepancies emerged in its stand to take action against violators of Model Code of Conduct or those who give religiously inflammatory speeches.

The existing discourse on the Election Commission misses on the appointment procedure and the same goes unquestioned. This article tries to dwell into the independence of the Commission by questioning its existing appointment process and how the same can be improved for an effective commission.

Constitutional provisions:

Article 324(2) provides for the appointment of the Chief Election Commissioner and other Election Commissioner by the President, subject to the provisions of any law made by the Parliament. The Constitution doesn’t mention any qualification for the CEC or ECs and it is the Union Cabinet which vide its power under Article 74(1) aid and advice the President on such appointment. The Union Cabinet makes the selection in pursuance of the Transaction of Business Rules, 1961 which is merely an executive procedure of making appointments including for the posts of UPSC, Finance Commission, Attorney General, Advocate General etc. Thus, the function remains essentially an executive act with Cabinet’s own discretion over such appointments.

Such a procedure is inherently faulty as it gives the government in power wide discretion and no accountability in appointing a position which matters most to it. Considering the same, the Supreme Court in October, 2018 referred the plea in Anoop Baranwal v. Union of India to make independent collegium to recommend names for appointment of Election Commissioners to a Constitution Bench. There are various grounds which necessitates change in existing mechanism and which the Supreme Court shall take into consideration while deciding on the plea.

Constitutional assembly debates:

Dr. B.R. Ambedkar during discussion on the Election Commission in Constituent Assembly Debate emphasized over the election machinery to be outside the control of the executive Government. He brought in amendment to original Article 289 to put the power of superintendence, direction and control “to a body outside the executive to be called the Election Commission”:

“8.105.213(Vol., Document No., Page Number): If the object of this House is that all matter relating to Elections should be outside the control of the Executive Government of the day, it is absolutely necessary that the new machinery which we are setting up, namely, the Election Commission should be irremovable by the executive by a mere fiat. We have therefore given the Chief Election Commissioner the same status so far as removability is concerned as we have given to the Judge of the Supreme Court.”

One of the members, Mr. Shibban Lal Saxena foresighted the still pending problem of independence in appointment of the Commissioner. Mr. Saxena moved in the amendment for approval of the President’s appointment by 2/3rd majority of the Parliament:

“But we are making a Constitution forever and not only for today.…. I want that in future, no Prime Minister may abuse this right, and for this I want to provide that there should be two-thirds majority which should approve the nomination by the President…… I want that there should be provision in the constitution so that even in the future if some Prime Minister tends to partial, he should not be able to be so.”

But there were other members also who supported Dr. Ambedkar’s procedure of appointment. Mr. K.M. Munshi stated:

“8.106.28: The Chief Election Commissioner, as the House will find, is practically independent. No doubt he is appointed by the President, that is, the Central Government. There can be no other authority, no higher authority in India than the President for appointing this Tribunal. you cannot omit this important thing.”

Dr. Ambedkar in final defense to his amendment confessed that his provisions “does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioner”. Still he did not want any parliamentary interference in appointment because:

It will introduce political considerations in appointment;
It will create administrative difficulties like appointment pending due to house not being in session.

He suggested for an “Instrument of Instructions” to the President which “provide therein some machinery which it would be obligatory on the President to consult before making any appointment.” Finally, the appointment of the Commissioner was left with the President subject to the provisions of any law made in this behalf by the Parliament.

Independence of the commission

Article 324(5) of the Constitution is intended to ensure the independence of the ECI and free it from external, political interference and thus expressly provides that the removal of the CEC from office shall be on “like manner and on the like grounds as a Judge of the Supreme Court”. Further, Article 327 (Power of Parliament to make law) itself begins with the words, ‘subject to the Provisions of the Constitution’ which means that any law made under Article 327 of the Constitution are subject to Article 324. It is interesting to note that Article 324 does not contain the phrase, ‘subject to the provisions of this Constitution’. It only shows that our Constitution makers never wanted the legislature to enact a law which will have the effect of affecting the independence of the Commission. The apex court observation in certain cases again establish the requirement of independence of the EC and in the process of its appointments. In Supreme Court Advocates-on- Record Assn. v. Union of India, (1993) 4 SCC 441 at page 664:

“381. As noticed above, no consultation is provided for with regard to the constitutional offices — except judicial offices — yet no appointment to the offices of high constitutional functionaries, such as the Comptroller and Auditor-General, the Chief Election Commissioner and others, can be made by the executive without going through some sort of consultative process to adjudge the suitability or eligibility of the person concerned.”

In T.N. Seshan, Chief Election Commr. of India v. Union of India, (1995) 4 SCC 611:

“10. …In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day.”

But the same independence seems to wither away in existing system whereby the President acts on aid and advice of Council of Ministers. It is well established that the President cannot act personally without aid and advice of Council of Ministers (Samsher Singh v. State of Punjab, (1974) 2 SCC 831). In past the Supreme Court (Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441) while deciding upon the appointment of judges to the Supreme Court took cognizance of this problem and considered it as a compromise on independence of judiciary. This resulted in establishment of the collegium system for the Supreme Court and the same can be applied for Election Commission as well:

“459. Similarly, in the case of appointments, the special provision prescribing the process for appointment is of significance, and Article 74(1) has to be read along therewith, and not in isolation, to make the correct construction.

“468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness.”

Similarly, to eliminate the discretion in appointment of the ECs and keeping in view the importance of free and fair election as interpreted by the Supreme Court to be envisaged in the Constitution, Article 74(1) is to be read with Article 324(2) in spirit of constitutionalism.

Sanctity of elections in democracy

The change in mechanism become more so important considering the importance of free and fair election in a democracy and practically, largest democracy in the world. Justice Arijit Pasayat in his concurring opinion in Special Reference №1 of 2002, In re (Gujarat Assembly Election matter), (2002) 8 SCC 237 held:

“153. Free and fair election is the sine qua non of democracy…. The Election Commissioner is a high Constitutional Authority charged with the duty of ensuring free and fair elections and the purity of electoral process.”

In Election Commission of India v. State of Tamil Nadu, 1995 Supp (3) SCC 379, the court observed:

“5. The Election Commission of India is a high constitutional authority charged with the function and the duty of ensuring free and fair elections and of the purity of the electoral process. It has all the incidental and ancillary powers to effectuate the constitutional objective and purpose. The plenitude of the Commission’s powers corresponds to the high constitutional functions it has to discharge.”

Justice Khanna in his concurring opinion in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, observed:

“198…..Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion.

“213. As a result of the above, I strike down clause (4) of Article 329-A on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution.”

Reports and comparative practices

The Dinesh Goswami Report on Electoral Reforms in 1990 recommended that the appointment of Chief Election Commissioner should be made by the President in consultation with Chief Justice of India and the Leader of the Opposition (and in case no Leader of the opposition is available, the consultation should be with the leader of the largest opposition group in the Lok Sabha). (Para 1.2)

Similarly, the Law Commission of India Report №255 (2015) recommended the appointment of all the Election Commissioners (including the CEC) should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of numerical strength) and the Chief Justice of India. (Para 6.12.1)

In other democratic countries a similar procedure is followed. In South Africa, the Election Commissioners are appointed by the President on the recommendations of the National Assembly, following nominations by a National Assembly inter-party committee, which receives a list of at least eight candidates. In Canada, the Chief Electoral Officer of “Elections Canada” is appointed by a House of Commons resolution for a non-renewable ten-year term, and to protect their independence from the government, he/she reports directly to Parliament. In the United States, the six Federal Election Commissioners are appointed by the President with the advice and consent of the Senate.

Conclusion

The Supreme Court will soon have a golden opportunity to review the provisions for appointment of the Election Commissioner. The provision as it stands today is a result of isolated and non-contextual interpretation. The intent of the constitution makers and purposive interpretation is the way out for a better appointment process. The existing position cannot sustain itself for long as the governments from time to time will try to influence this constitutional post. It is time that instead of mere rhetoric over independence of the EC some substantial change is brought forward for protection of the constitutional body.

The piece was co-authored with Saurabh Pandey and was first published at Counterview on May 04, 2019: