Supreme Court’s Remarks Trigger A Debate for An Independent CEC

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By M N Khan

NEW DELHI—The Supreme Court’s remarks while hearing a petition on the selection process and appointment of Election Commissioners have set off a countrywide debate on the issue of India’s Chief Election Commissioner who must not only be independent but also seen to be independent by the public.

The SC’s remarks assume significance because the role of the CEC came under a lot of criticism from Opposition leaders in the last few years.

The apex court, during the hearing, commented that the nation needed a strong CEC like TN Seshan.

The top court’s remarks spoke volumes about the CEC’s functioning which has been questioned by many opposition parties.

Many opposition leaders called the office of CEC as an extension of the ruling party.

Former Chief Election Commissioner TN Seshan gave the impression of an independent Election Commission by adhering to the Commission’s rule book and by remaining within the framework of the Constitution. This independent perception created by him of the Election Commission was taken forward by the successive Chief Election Commissioners: MS Gill, JM Lyngdoh, and SY Quraishi but in the recent past, it has lost its credibility.

During the hearing, Justice K.M. Joseph of the Supreme Court made a significant observation. He said, “The Election Commission of India (ECI) is perhaps the envy of the world. Perhaps, one institution that has come in for a lot of compliments, is largely due to the reforms of T.N. Seshan. He had succeeded in putting in place a lot of rules to reduce human discretion to the minimum. By doing this, he eliminated fear. That is, the Election Commissioners just had to follow the rules and did not have to bother about coming under pressure from any political party.”

The top court was debating constitutional challenges to the current CEC and EC appointment process, arguing that appointments were made at the whims and fancies of the government. The petitions aimed to establish a separate collegium or selection body for the CEC and two other ECs’ upcoming appointments. According to the petitions, the Centre unilaterally appoints the members of the Election Commission, unlike the appointments of the CBI director or Lokpal, where the leader of the Opposition and judiciary can have their say.

“Enormous power has been vested on the fragile shoulders of three men (two ECs and the CEC). We must find the best man for the post of CEC. The question is how we find that best man and how to appoint that best man,” the apex court pointed out.

The court also asked the Union government to explain the method followed, or yardsticks adopted, in appointing the chief election commissioner (CEC) and the election commissioners (ECs). The Supreme Court looked into the selection of election commissioner Arun Goel on 24 November. The Supreme Court also requested the original records pertaining to his appointment from the Centre for review to determine whether there had been any “hanky-panky.”

According to Sanjay Hegde, senior Supreme Court lawyer, “I was part of T N Seshan’s legal team when he challenged the appointment of two other election commissioners who were appointed to dilute his sole exercise of powers of the Election Commission. The Supreme Court under Chief justice A M Ahmadi upheld the government action and now subsequent generations are eulogizing TN Seshan’s firmness. I wish the court had heeded his lawyer G Ramaswamy’s warning, that the Government’s power of fixation on the number of election commissioners was misused for its fixation to “fix Seshan.”

On the appointment of CEC and other two Commissioners, SY Quraishi, former Chief Election Commissioner said, “The Election Commission of India is the most powerful Commission in the world, but our system is the most deficient. We are the only Commission in the world appointed by the government of the day without wider consultation. In most countries, there is a Collegium System where the leader of the opposition is consulted. We have a Collegium System in India. The Judges, Central Vigilance Commissioner, and Information Commissioner are all appointed through Collegium then why not Election Commissioners.”

On the way forward, the former Chief Election Commissioner said, “Another reform proposal is that while the CEC cannot be removed except through the process of impeachment, the other two Commissioners do not enjoy the same protection. Originally, the Election Commission was a one-man organization. The protection was not for an individual but for an institution. That institution now has three people; so, all three should have equal protection. Now, these two sometimes feel that they are on probation and this feeling is fatal for the independent functioning of the Election Commission. In many countries, there are not only Collegium systems but full parliament hearings. In some countries, the interview of the candidate is live telecast for people to judge. The trust of political parties and voters in the Election Commission is paramount, and hence collegium is the best way forward.”

Prof. Jagdeep S. Chhokar, one of the founders of the Association for Democratic Reforms, (ADR) and former Director In-charge of the Indian Institute of Management, Ahmedabad, said, “The job of the Election Commission is very complex and conducting election in a country like India is a mammoth exercise. Hence, the Election Commission should not only be neutral but should also appear to be neutral. In the past, some of the actions of the Commission have been questionable.”

“The Election Commission is not answerable to any political party or leader but to the people of India. The other point is Election Commission despite being the registering authority under Section 29A of the Representation of the People Act, 1951, has no power to de-register the political parties. Therefore, the political parties take the Election Commission for granted because they know that the Commission cannot do more other than issuing advisory or notice to the political parties and the leader even for the gravest violations,” he said.

“As the Election Commission is not selected through a collegium system where the Opposition is not involved and even if the Election Commission is neutral, the Opposition can claim otherwise because they were not part of the selection process. The constitutional protection for the other two Commissioners can go a long way in ensuring the independent functioning of the Commission because under such circumstances they can act without any kind of pressure or fear of the ruling party,” opined Chhokar.

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