The March 2023 judgement of the Supreme Court on the manner of appointment of Election Commissioners is just the tip of a large iceberg.
Currently, the Election Commissioners (ECs) and the Chief Election Commissioner (CEC) are appointed by the President on the advice of the Prime Minister.
The Supreme Court bench suggested that, until Parliament passes a specific law, every EC and CEC should be selected by a panel comprising the Prime Minister, the Leader of the largest Opposition party in the Lok Sabha and the Chief Justice of India.
Why did it make this suggestion? It was because there has been a feeling for a fairly long time that the Election Commission has not been totally impartial. In fact, BR Ambedkar was of the view that “the election machinery should be outside the control of the executive government.”
If the government is to bring in legislation to implement the decision of the Supreme Court, it may be an opportune moment to also look at the other issues that affect the composition and the operation of the Election Commission of India (ECI).
Firstly, what has been and should be the background of persons appointed to the ECI? I have gone through the links provided via the Wikipedia page of the background of all 25 CECs. Why did I not go to the Election Commission’s own website? Because background data on past CECs and ECs are not available on the huge website of the ECI – just their photographs. What a pity and what a shame!
Rajiv Kumar, the current CEC, is the 25th CEC. Of those 25, 23 have come from the civil service (ICS, IAS, IRS, judicial service, etc.). Just two are non-bureaucrats. RK Trivedi (1982-1985) was a politician and VS Ramadevi, also described as a politician. While the latter was our only concession to gender equality, regrettably Ramadevi lasted as CEC for just 16 days (26 November to 1990 to 11 December 1990).
So, the Election Commission has been a bureaucrat-boys club; a part of the “jobs-for-the boys” racket. In fact, retired members of the bureaucracy abound in most regulatory organisations. While some bureaucrats gently fade away after retirement, some others are actively looking for post-retirement jobs, so they may perhaps be more pliable as they approach retirement. As the late Chief Justice Hidayatullah observed in a somewhat different context, these people are often “not forward-looking but looking forward”.
During one of my visits to Nirvachan Sadan, I recall informally asking one of the ECs or the CEC: “Why are all the top slots in the ECI occupied by retired bureaucrats?” The answer was (and this is not a direct quote): “The conduct of elections requires us to have close coordination with the government for the bandobast concerning deployment of troops, of poll workers, transporting of EVMs, setting up counting centres, coordinating with state governments, etc. and we know the persons at the top in the bureaucracy as we have just come from there.”
I think this is a fair response – but not totally fair. Do all three (CEC+ two ECs) have to be from the bureaucracy? After all, the Election Commission has Deputy Election Commissioners and a large permanent bureaucracy that has conducted many elections. Would they not have good contacts with the Home Ministry, the Defence Ministry, the state governments, etc.?
So, the time has come to re-imagine the ECI. Here is what I think (and others may disagree or have better suggestions) the government should take into consideration when it brings forth a bill in Parliament about the composition of the Election Commission.
It should be a five-member ECI with the selection panel comprising, as suggested by the Supreme Court, the Prime Minister, the Leader of the largest Opposition party in the Lok Sabha, and the Chief Justice of India.
Of the five members, there really is no reason why there should be more than two bureaucrats.
And the other three ECs?
Two of them should be members of civil society – journalists, lawyers, members of NGOs, academics, etc. Several bodies such as the Central Information Commission (CIC) have had members from civil society and Shailesh Gandhi, a member of the first CIC, has shown us the invaluable contribution that members of civil society can make.
And the CEC, the fifth member, should be a retired judge of the Supreme Court or the retired Chief Justice of a High Court.
The term of the bureaucrats and the civil society members should be six years or until the person attains the age of 65 years, whichever is earlier. That is the current stipulation.
In case of the fifth member, the CEC, who will be a retired judge, it should be a fixed three year term as the current retirement age for a High Court judge is 62 years and it is 65 years for a Supreme Court judge.
But the unanswered question is: who will be on the short list? Currently, it is the political/bureaucratic establishment that prepares the short list whenever there is a vacancy.
The PM and the Leader of the largest Opposition party in the Lok Sabha could each suggest, say, names of three bureaucrats and two out of those six would be selected by the panel – one from the PM stream and one from the opposition list. If no member from one of the streams gets support of the majority of the panel, then that stream can suggest a further list of names. A mid-term retirement of one EC is to be substituted from the same stream.
Similar rules can be framed for the two civil society members.
The one judicial member (the CEC) would be from a list of four judges selected by the Supreme Court collegium, excluding the Chief Justice, as he is on the appointment panel.
There may also be issues concerning the ‘lists’ when today’s government becomes tomorrow’s opposition. I know that all this involves some legal drafting gymnastics, but I am sure we have lawyers capable of handling it.
Currently, under the Constitution, only the CEC enjoys the same protection from removal as a Supreme Court judge. It is imperative that the protection enjoyed by the CEC should also be extended to ECs.
After retirement, no CEC or EC should undertake any job or office under the central or state governments or any public sector organisation or any organisation associated with any government in any way or be eligible to be a member of Parliament or state legislature.
Finally, to take the analogy with the Supreme Court further, all decisions of the Election Commission (with concurring opinions or dissents) should be made public on the day they are delivered. If the Supreme Court can deliver its judgements in open court, there is no reason why the Election Commission should not do so.
Let us make the Election Commission an institution that all Indians trust and revere.
Dorab R. Sopariwala was Editorial Adviser at NDTV for over two decades and is currently Adviser at iKroya.com LLP. He writes on political and economic issues. Views are personal.