With a Constitution Bench of the Supreme Court hearing a batch of petitions on having a neutral mechanism for the appointment of members of the Election Commission of India, the debate on having a collegium-like panel to select Election Commissioners has been revived. In a conversation moderated by Abhinay Lakshman, Jagdeep S. Chhokar and S.Y. Quraishi discuss the need for reforming the process of selection. Edited excerpts:
Is there a case for a collegium-like system for the appointment of Election Commissioners (ECs)?
S.Y. Quraishi: Yes, of course. I have been writing this, saying it in the media for a long, long time that there is a case for a collegium, that it would inspire more public confidence. The presence of the Leader of the Opposition in the Lok Sabha (LoP) in the collegium particularly would lend credence to the selection process. Of course, the Chief Justice of India (CJI) is important also. But the LoP politically has a lot more importance and significance if he or she is signatory to the appointment.
Jagdeep S. Chhokar: I agree with what Dr. Quraishi has said about the collegium, whether it is of the Prime Minister, LoP and CJI, or there are also one or two other people. A broader base and consultative system would obviously be [better]. There is no comparison with the current system where the government of the day appoints ECs on its own, with nobody knowing how it is being done. So, any change of that kind will be very, very useful.
The government’s opposition to reform in this area has so far been the limiting jurisdiction of the Supreme Court. And governments over the years have consistently resisted such reform. What do you have to say about that?
SYQ: Yes, we have been writing to the government. Several predecessors and I have written to the government in the last 20-25 years, and the government has been resisting because no government wants to let go of this power, which is why they have not taken any action. When I was appointed as the EC in 2006, I was told by a top functionary in the Prime Minister’s Office that the Prime Minister was of the opinion that the collegium is a good idea and is not avoidable any more, and he thought that perhaps my appointment would be the last under the old system. But it didn’t happen for whatever reason.
As far as the judiciary’s power to look into the issue goes, the judiciary is the guardian of the Constitution, and a free and fair election is [part of] the basic structure of the Constitution. On anything to ensure a free and fair election, the judiciary comes in very much. And in any case, the judiciary is pointing out that Article 324 requires that Parliament will pass an Act about the procedure of appointment and things like that. It has not happened in the last 72 years. So, the Supreme Court is fully justified in pointing this out. In any case, the Supreme Court has not jumped in suo motu. There are PILs before it, and people have gone to court in protest against the government’s inaction. So, the Supreme Court has every right to ask questions and adjudicate. Why has the government been sleeping for 72 years? Why haven’t they passed this?
JSC: The reason is obvious. The government wants to have complete control on the constitutional body called the Election Commission of India (ECI), which under the Constitution is supposed to be independent of the government. They have not, in a sense, been resisting. A lot of proposals have been made by the ECI and by several committees and commissions appointed by the government itself for the last 25-30 years. There have been Law Commission reports; there is a report of the commission to review the working of the Constitution; and going back before that, there was the Goswami Committee report, and so on. So, the government’s own commissions and committees have said so, but obviously any government, irrespective of the party in power, wants to have some control over the ECI and appointing ECs directly without consulting anybody else is one obvious way of asserting its power. The government wants to make sure that the ECI, or the three members of the ECI do not have the courage to go against the government’s will. That is the whole issue.
Election Commissioners are considered a feeder category for appointment as CEC, with different thresholds for termination of service. What is the power dynamic being created because of this? And is there a case to consider the appointment of ECs and CECs separate from each other?
JSC: There is no such provision either in the Constitution or in law, which has been made in 1991 called the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. Section 4 of that unambiguously says the CEC or an EC shall hold office for a term of six years from the date he or she assumes office. Then there is a proviso, provided that where the CEC or an EC attains the age of 65 years before the expiry of the said term of six years, he or she shall vacate the office on the date on which he or she attains the said age. Now, the trick here is that the government, in its wisdom over the years, has been appointing people as ECs who do not even have six years before they complete 65 years of age, and therefore they attain 65 and they retire as an EC, or at best as the CEC after a tenure of one or two years as the CEC. But there is nothing in the law or in the Constitution which says that you cannot appoint a 58- or 59-year-old. Why can’t the government appoint a 58- or a 59-year-old person as the EC and a different 58- or 59-year-old person as the CEC?
The tradition has been built up obviously by the bureaucracy, so everywhere seniority in the bureaucracy is made to count. The position of EC or CEC is not based on one’s standing or seniority in the civil service. It could even be a lawyer, it could be a judge, I mean it is not a written rule anywhere. The argument given is that bureaucrats conduct elections in the districts when they are District Magistrates and so on, and therefore they have experience that nobody else has. While judges and lawyers and other people who deal with such matters could very well be appointed and even bureaucrats could be appointed at the appropriate age, the intention is not to give any EC or CEC confidence that he or she cannot be touched for the next six years. And that is why this so-called tradition, or the system, has been evoked where batch seniority is extremely important. It is very interesting to see that seniority becomes extremely important for ECs, but within the civil service people are superseded every now and then. Then the principle of seniority is not sacrosanct. So, this issue of whether an EC and a CEC should have a fixed tenure of six years is extremely important, and I am very happy that the Constitution Bench in the Supreme Court took note of it on its own. I think that is a matter which is very important and the ECs and CECs must have a tenure of six years which is undisturbed; and to say that an EC is always elevated to the post of CEC, that again is a created situation. The Constitution or the law does not say that anywhere at all. All three members are equal, and one is first among equals.
SYQ: I think the seniority principle is an important principle to follow, even in the Supreme Court. The short tenure of the CEC does not infringe on his or her independence. That is an independent issue. And the short tenure is happening because since 1993, we have a multi-member ECI, and we have to see the combined tenure as EC and CEC, or 65 years of age, whichever is earlier.
Given that the kind of protection from termination is different for ECs and the CEC, does this not significantly complicate the position a CEC might be in after having served as EC for part of his or her tenure?
SYQ: Yes, which is why we say that while the CEC is protected from removal, the two ECs are not, which was a mistake committed at the time of passing the 1993 amendment. It should have been automatic because protection to an EC is not for the individual but for the institution. The institution was a one-member institution earlier, now it is a three-member institution. So, protection has to extend to all three.
Jagdeep S. Chhokar is Co-founder of election watchdog Association for Democratic Reforms and former Professor at IIM, Ahmedabad
S.Y. Quraishi was the 17th Chief Election Commissioner of India
