Experts question transparency in selection of election commissioners

By Kumar Vikram

New Delhi, Dec 4 (IANS): The Centre has maintained that the present system of appointing election commissioners is in consonance with constitutional provisions. However, experts and poll rights bodies have raised questions over the transparency in the selection process surrounding senior level appointments at the Election Commission, an autonomous constitutional authority responsible for administering Union and State election processes.

As per the rules, the President appoints the Chief Election Commissioner and two Election Commissioners at the poll body. They have a tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive the salary and perks available to Judges of the Supreme Court. Moreover, the Chief Election Commissioner can be removed from office only through impeachment by Parliament.

However, many don't agree with the government's assertion of transparency in the selection process of the top EC officials and have approached the Court. The Top Court is currently hearing a slew of petitions challenging the process by which election commissioners are appointed.

The main contention of the petitioners is that the present appointment process for election commissioners is not transparent. According to Article 324(2) of the Constitution, election commissioners are to be appointed by the President. The argument of the petitioners is that as the President is bound by the advice of the prime minister and council of ministers, the appointment of the election commissioners is a solely executive decision. They argue that this renders the selection process vulnerable to manipulation and partisanship.

On 17th May 2021, the Association for Democratic Reforms (ADR) in the public interest filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of the practice of the Union of India and Election Commission in appointing the members of the Election Commission as being violative of Articles 14, 324 (2) and basic features of the Constitution. "Presently, the appointment of Chief Election Commissioner and Election Commissioner is done solely by the executive. Such an appointment weakens the institutional apparatus and is a threat to democracy. To uphold democracy, the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference," said the ADR.

Talking to IANS, Prof Jagdeep Chhokar, Co-founder, Association for Democratic Reforms (ADR) said, "There is zero transparency. At times, it looks like a random process. Sometime an election commissioner is appointed within the next few days when the post gets vacant. And, sometime the post lies vacant for four or five months and the election commissioner is suddenly appointed to this post overnight," he added.

On the other side, the apex court has made strong comments on the tenure of the members at the Election Commission. On November 23, the SC observed that successive governments have completely destroyed the independence of the Election Commission of India (ECI) by ensuring that no chief election commissioner (CEC) gets the full six-year term to head the poll body since 1996. It added that the absence of a law for appointment of election commissioners (ECs) has resulted in an ‘alarming trend'.

"It's a very, very disturbing trend. After TN Seshan (who was CEC for six years between 1990 and 1996), the slide began when no person has been given a full term. What the government has been doing is that because it knows the date of birth, it ensures that anyone who is appointed as the CEC does not get his full six years... Be it the UPA (Congress-led United Progressive Alliance) government or this government, this has been a trend," said the bench led by Justice KM Joseph.

On the same day, the Union government argued that there was no need for the court to interfere since the appointment process has worked well.

Criticising the government for not coming up with a law despite a positive mandate under Article 342(2), the petitioners proposed last week that the top court could direct a selection panel on the lines of the Central Bureau of Investigation (CBI) wherein the panel comprises the Prime Minister, the Chief Justice of India, and the leader of the single largest party in the Opposition.



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