PIL For Election Commission Appointment Can Be a Game Changer

Appointments in the past contest claims by the attorney general of ‘no abuse of power.’

The Election Commission of India logo.

(Photo: Aroop Mishra/ The Quint)

A vital decision recently taken by the Supreme Court has the potential to be a game-changer for the long-term health of our republic. The Supreme Court ruled that a writ petition seeking the establishment of a formal committee-based process for selection and appointment of the chief election commissioner and the election commissioners would be heard by a constitution bench comprising five Supreme Court judges.

The Election Commission is the umpire conducting the fundamental, primary and the most vital feature of our republic, and thereby the bedrock of democracy – elections, where the will of the people is expressed.

Selection to various vital positions — for example, that of the chief vigilance commissioner — involves a substantive, participative and inclusive selection process.

Yet, incumbents for other vital positions are simply selected by the government of the day — a prime glaring example being the offices of a constitutional functionary as vital as the election commissioners.

Union of India Has a Negative Stand on Institutionalisation of Process

The Supreme Court is reported to have observed that the issue has not been debated and answered before, and in exercise of powers under Article 145 (3) of the Constitution, since the issue involves a substantial question of law and interpretation of constitutional schemes, the question has been referred to a Constitution Bench for an authoritative pronouncement.

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What makes the issue even more significant is the strong opposition to the idea of a collegial selection, put up by the Attorney General of India, representing the views of the government.

The earlier Union government, UPA-II, was plagued by public outrage over its opposition to the institutional structure of selecting the lokpal – which caught the imagination of the common man thanks to a campaign over the issue by Anna Hazare.

Yet, on the issue of institutionalising the selection and appointment of election commissioners, the views of the Union of India has been stridently negative.

The attorney general’s arguments against a collegial selection and appointment process involved naming some stalwarts who have been chief election commissioners.

Arguing that there have been no allegations of abuse of power, various names were presented as examples, as if to say: “It ain’t broken and so, don’t fix it”.

Past Appointments Disprove Claim of ‘No Abuse of Power’ in EC

The argument by the attorney general that there have been no allegations of abuse of power is incorrect. In fact, when the attorney general listed names to show the kind of stalwarts who have been selected by the governments, the list was significant for election commissioners he did not name rather than those he named.

Election commissioners named as spectacular successes were TN Seshan, JM Lyngdoh, N Gopalaswamy and SL Shakdar. But those he did not name included Navin Chawla and AK Joti, whose roles as Chief Election Commissioner involved some serious controversy.

In fact, the Chief Election Commissioner N Gopalaswamy (one of those lauded as a great example of a CEC chosen by a government in power) had issued a 93-page formal complaint against Navin Chawla, seeking his removal for evident bias in favour of the Congress Party. That incumbent went on to be promoted as the chief election commissioner.

Likewise, the six-month tenure of AK Joti, who had been principal secretary to the prime minister when he was the Gujarat chief minister, was riddled with controversy – ranging from eyebrows being raised for using a government bungalow in Gujarat while his role was in Delhi (his answer was that he paid rent) to disqualifying 20 MLAs of the Aam Aadmi Party without even granting them a personal hearing.

Who Could be Part of the Selection Committee?

Like a judge, an election commissioner must not only be fair and just but must be seen to be fair and just. If the Election Commission cannot command trust, the very faith in democracy would stand undermined and lead to anarchy.

A selection committee for appointment could involve the prime minister, the leader of opposition and the speaker (presiding officer of the Lok Sabha) – three vital offices that would represent the full spectrum of the polity. It would be tempting to add to the mix, the chief justice of India and the vice president (who presides over the Rajya Sabha).

However, the vice-president would be an added voice of the government of the day, and therefore would not bring in diversity of thought into the process.

Likewise, the judiciary could perhaps best be kept out of the process for selecting an umpire who presides over the clash of politicians vying to head the executive arm of the State.

There can be no “perfect” process, but any process involving greater inclusion, representativeness and diversity would be superior to the government of the day making the selection.

(The writer is an independent advocate. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)