A few days after India’s law minister Kiran Rijiju criticised the Supreme Court’s “collegium” process of appointing judges as “opaque”, the Supreme Court is asking hard questions about how India’s election commissioners are appointed.
A 5-bench judge of the Supreme Court has said in oral observations that there needs to be a neutral body to appoint the election commissioners.
The Election Commission of India has three election commissioners, the senior most being the Chief Election Commissioner. The body of three works through consensus and consultation.
While the Election Commission of India is a powerful body by virtue of constitutional autonomy, its impartiality in the election process comes under spotlight when the Election Commissioners are retired or serving bureaucrats appointed by the ruling party.
In court, the government has argued that there have been no issues with the Election Commission to warrant going into how the commissioners are appointed.
Some would say that there have been issues from time to time, but that is not the point. It is a matter of principle.
In 2012, senior Bharatiya Janata Party leader Lal Krishna Advani had demanded a collegium system for the appointment of the election commissioners, and indeed of the chiefs of all constitutional bodies.
Today the same party in power does not feel the need to make such a change, just as in 2012 the Congress-led UPA coalition did not.
No politician in power wants to curb the extent of their own powers. Why would they? Which is why the Supreme Court must use its powers to bring about this all-important reform.
Why we need another Seshan
Among the problems the Supreme Court has pointed out in its deliberations is that the Chief Election Commissioner is not getting a good tenure, given the retirement age of 65. The last time any CEC was appointed with over three years to go was in 1996.
TN Seshan, the firebrand CEC, had a good 6 years from 1990 to 1996. Seshan was able to bring about Supreme Court-backed reforms to the election body that are serving us well till this day. It is thanks to Seshan that human discretion in the election process has been minimised, reducing the scope for manipulation.
Seshan introduced photo identity cards to address false voting, and a model code of conduct with strict enforcement to reduce the role of money in the election process.
Today we need another Seshan because we have a number of issues the Election Commission has not been pressing hard about. These include the false deletion of voters from voter lists, the theft of voter data, vote privacy issues caused by the release of booth-wise data, the use of fake news, the no-limit spends by political parties, and so on.
The Supreme Court must remember that the PV Narasimha Rao government had clipped Seshan’s wings by appointing two fellow election commissioners who would have a say in all decision making, and that the Supreme Court had upheld this idea. This is why we need a completely new system of appointing election commissioners.
Justice KM Joseph said that it would be a good idea to have the Chief Justice of India on the appointment committee. He remarked that the CJI’s very presence will send a message of neutrality.
Some newspaper editorials have rightly pointed out that the CJI is a member of the appointment committee of the powerful Central Bureau of Investigation.
Something stronger than a collegium
We therefore need an even stronger system of the appointment of the election commissioners, not just the top 3 election commissioners at the national level but ditto in the state election commissions.
For example, it would be a good idea to carve out a small new service called the election service within the Union Public Service Commission. These women and men may rise to be election commissioners one day.
Since the Election Commission has Constitutional autonomy, these women and men will never feel answerable to changing governments, only to the Election Commission and the courts. This would be a similar system to the one we have for the audit services.
The Supreme Court bench has also pointed out that India’s neighbouring countries, Sri Lanka, Nepal, Bangladesh etc seem to have more stringent safeguards for the appointment of the election chiefs.
“We wanted to point this out before you because there is no law here. Silence of the constitution is being exploited by all. They (the Executive) have used it to their interest,” said Justice KM Joseph.