The issue of appointment of Chief Election Commissioner (CEC) has not received as much attention in the last 10 years as that of placing Election Commissioners on an equal footing with CEC with regard to removal.
This was a hotly debated topic during the period when the Election Commission was a single-member body but it took backseat after the EC became a three-member organisation in 1993.
Yet, the matter has not lost importance or relevance as, theoretically, it is possible for any government of the day to make an “outsider” Chief Election Commissioner when the post falls vacant.
In his latest book, “Every Vote Counts” (2019), Navin Chawla, who was CEC during April 2009-July 2010, has touched upon this issue. He has recalled how the Vajpayee government, in January 2004, sought to bypass the then senior most Election Commissioner T.S. Krishnamurthy and appoint member of the 12th Finance Commission and former Cabinet Secretary T.R. Prasad for the post of CEC.
Gleaning information from Mr Krishnamurthy’s book “The Miracle of Democracy: India’s Amazing Journey” (2008), Mr Chawla has stated that both Mr Krishnamurthy and B.B. Tandon, another Election Commissioner, had threatened to resign their positions. Eventually, the move was dropped in the wake of adverse reactions from other political parties and intelligentsia. Mr Krishnamurthy became the 13th CEC, succeeding J.M. Lyngdoh.
Till now, the 2004 episode was the only instance where the incumbent government made an attempt to disturb the convention of elevating the senior most Election Commissioner to the CEC post. It also highlighted the mindset of the establishment, which would like to have “its people” in every important institution of governance including the Election Commission.
Perhaps, anticipating such a trend in future, the Constituent Assembly had debated on the procedure of appointment and removal of CEC and Election Commissioners. Shibban Lal Saksena, who hailed from Agra, Uttar Pradesh, had argued in the Assembly that as the appointment of CEC by President would, for all practical purposes, mean appointment by the Central government under the decision of Prime Minister, the process should be “subject to confirmation by a two-thirds majority in a joint session of both Houses of Parliament.”
Another prominent member of the Assembly, H.V. Kamath, had even then pointed out the discrepancy in the procedures for removal for CEC and Election Commissioners. While a CEC could be removed only through the process of impeachment as is applicable to a judge of the Supreme Court, a mere recommendation of the CEC is enough to do away with Election Commissioners.
In fact, the discrepancy paved the way for a huge controversy in early 2009 when the then CEC N. Gopalaswami, before laying down his office in April that year, recommended to the government for the removal of Mr Chawla as Election Commissioner. The Congress-led United Progressive Alliance government had not only ignored Mr Gopalaswami’s recommendation but also appointed Mr Chawla the next CEC.
On a number of occasions, various panels, while examining the subject of electoral reforms, had made recommendations on the appointment of CEC.
The Law Commission, headed by Ajit Prakash Shah, in its report of March 2015, examined the appointment process at length and held that it was “imperative” that the appointment became a “consultative process,” given the “importance of maintaining the neutrality” of the ECI and shielding the CEC and Election Commissioners “from executive interference.” The panel had also drafted amendments to the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, to this effect.
The Law Commission had made two specific recommendations. One, 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 Prime Minister, 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 Chief Justice of India. Two, the elevation of an Election Commissioner should be on the basis of seniority, unless the collegium or the committee, for reasons to be recorded in writing, finds such Commissioner unfit.
These recommendations may not be of any immediate value for the new government that is going to be formed in late May, as the present CEC, Sunil Arora, will be in office till April 2021.
But, their implementation along with that of many other suggestions of the Law Commission, according to activists, would enhance not only the image of the government but also the credibility of the Election Commission, which is at the receiving end from different quarters ever since preparations began for the current Lok Sabha elections.