Reforming the Election Commission

IN NEWS:

• Recently, the Union Government introduced a bill removing the Chief Justice of India (CJI) from a three-member panel to select the Chief Election Commissioner (CEC) and Election Commissioners. Instead of the CJI, the three-member panel, when formed, would consist of a Cabinet Minister besides the Leader of Opposition (LoP) in the Lok Sabha and the Prime Minister, who would head it.

MORE ON NEWS:

• The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was introduced by Law Minister Arjun Ram Meghwal in the Rajya Sabha.
• In March 2023, the Supreme Court ruled that the selection panel should comprise the Prime Minister, the Leader of Opposition (LoP) in Lok Sabha and the CJI.
• The court had said the order would hold good until a law was made by Parliament.
• Until this SC ruling, election commissioners and CECs had been appointed by the president after receiving recommendations from the government.

ELECTION COMMISSION OF INDIA:

• Election Commission is a permanent and an independent body established by the Constitution of India directly to ensure free and fair elections in the country.
• Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to parliament, state legislatures, the office of president of India and the office of vice president of India shall be vested in the election commission.

COMPOSITION:

• Article 324 of the Constitution has made the following provisions with regard to the composition of election commission:
  • The Election Commission shall consist of the chief election commissioner and such number of other election commissioners, if any, as the president may from time-to-time fix.
  • The appointment of the chief election commissioner and other election commissioners shall be made by the president.
  • When any other election commissioner is so appointed, the chief election commissioner shall act as the chairman of the election commission.
  • The president may also appoint after consultation with the election commission such regional commissioners as he may consider necessary to assist the election commission.
  • The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be determined by the president.
• The chief election commissioner and the two other election commissioners have equal powers and receive equal salary, allowances and other perquisites, which are similar to those of a judge of the Supreme Court.
• In case of difference of opinion amongst the Chief election commissioner and/or two other election commissioners, the matter is decided by the Commission by majority.
• They hold office for a term of six years or until they attain the age of 65 years, whichever is earlier.
• They can resign at any time or can also be removed before the expiry of their term.
• Originally the commission had only a Chief Election Commissioner. But since the early 90s, it has the Chief Election Commissioner and two Election Commissioners.

POWERS AND FUNCTIONS:

• Administrative functions:
  • To determine the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament
  • To prepare and periodically revise electoral rolls and to register all eligible voters.
  • To notify the dates and schedules of elections and to scrutinise nomination papers.
  • To grant recognition to political parties and allot election symbols to them
  • To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections.
  • To request the president or the governor for requisitioning the staff necessary for conducting elections.
  • To supervise the machinery of elections throughout the country to ensure free and fair elections.
  • To register political parties for the purpose of elections and grant them the status of national or state parties on the basis of their poll performance
• Quasi-Judicial functions:
  • To act as a court for settling disputes related to granting of recognition to political parties and allotment of election symbols to them.
  • To appoint officers for inquiring into disputes relating to electoral arrangements.
  • To determine the code of conduct to be observed by the parties and the candidates at the time of elections.
  • To cancel polls in the event of rigging, booth capturing, violence and other irregularities
• Advisory functions:
  • To advise the president on matters relating to the disqualifications of the members of Parliament.
  • To advise the governor on matters relating to the disqualifications of the members of state legislature.
  • To advise the president whether elections can be held in a state under president’s rule in order to extend the period of emergency after one year.

CONSTITUTIONAL SAFEGUARDS OF ELECTION COMMISSION:

• Security of tenure:
  • The chief election commissioner is provided with the security of tenure
  • He cannot be removed from his office except in same manner and on the same grounds as a judge of the Supreme Court.
    • In other words, he can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity.
  • Thus, he does not hold his office till the pleasure of the president, though he is appointed by him.
  • But no such protections are available to other election commissioners. They can be removed from office with the recommendation of the chief election commissioner.
• Service conditions cannot be changed:
  • The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.

ISSUES:

• Qualification not prescribed:
  • The Constitution has not prescribed the qualifications nor the term of the members of the Election Commission, leaving it to the executive.
• Security of tenure is not available to election commissioners:
  • Removal of the Election Commissioners does not require such a process of impeachment and can be removed simply by the government in power with recommendation of the chief election commissioner, making them vulnerable, and affecting their ability to act independently.
• Dependent on centre government on financial matters:
  • The expenses of EC are not charged upon Consolidated Fund of India. Hence, it is dependent on the Union Government for financial matters.
• Absence of independent human resource:
  • ECI does not have independent staff of its own. So, when elections take place, it has to depend upon staff of Central and State Governments.
  • Hence, the dual responsibility of the administrative staff, to the government for ordinary administration and to the ECI for electoral administration, is not conducive to the impartial and efficient functioning of the Commission.
• In enforcing Model Code of Conduct (MCC):
  • There is no clarity regarding the extent and nature of the powers which are available to the ECI in enforcing the Model Code of Conduct (MCC) as well as its other decisions in relation to an election.
• "Truncated" tenures:
  • No Chief Election Commissioner has completed a six-year tenure since 2004. CECs appointed since 2007 served just two years or even less.
  • Because of the truncated tenure, the CEC is unable to do anything substantial.
• Issues with exercise of powers by the ECI under Article 324:
  • Transfer of officials:
    • There are instances of abrupt transfer of senior officials working under State governments by an order of the commission. However, transfer of an official is within the exclusive jurisdiction of the government.
    • Some argues that transfer of officials is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI.
    • Therefore, it is actually not clear whether the ECI can transfer a state government official in exercise of the general powers under Article 324 or under the model code.
  • ECI’s intervention in the administrative decisions:
    • No government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
    • This may negatively affect the essential service delivery mechanism of the government
    • For example: EC prohibited food kit distribution during 2021 Kerala Legislative Assembly election
• Limited power to regulate political parties:
  • Despite being the enrolling authority under Section 29A of the Representation of the People Act, 1951, EC cannot deregister political parties in any event, for the gravest of infringement.
  • The ECI has no power in enforcing inner-party democracy and regulation of party finances.
• Executive influence in operations:
  • For example: ECI utilizes Central Armed Police Forces, which falls under the Union Home Ministry, instead of local police service for security is to keep state elections away from local influences and thereby ensuring neutrality to the political parties. But recently there are allegations that Central Armed Police Forces are acting under influence of the ruling party at the Centre.

SUGGESTIONS:

• Protections to ECs on par with CEC:
  • There must be similar election and removal procedures for CEC and ECs, and they must exercise the same powers unless specifically prescribed by law.
  • For instance, in the recent judgement, in a concurring opinion, Justice Ajay Rastogi said the procedural safeguards in place for the removal of the CEC should be extended to the Election Commissioners.
• Financial independence:
  • Also, the expenses of ECI must be charged on the Consolidated Fund of India.
• Permanent staff for operational independence:
  • As suggested by the constitutional bench, create a permanent, independent secretariat for the ECI to protect its staff from various pulls and pressures from the executive.
  • The Goswami Committee recommended an arrangement similar to that of the Lok Sabha/Rajya Sabha secretariat provided in Article 98(2), which permits the Parliament to regulate the recruitment and service conditions of persons appointed to the secretarial staff in either House of Parliament.
• New law on appointment of election commissioners:
  • The parliament should bring in a new law under Article 342(2) on the appointment of election commissioners.
  • The apex court made it clear that the current system of appointment by a three-member high-level committee will be enforced until a law in this regard is made by the Parliament.

BEST PRACTICES:

• South Africa:
  • Election Commissioners are designated by the President on the suggestions of the National Assembly
• Canada:
  • Election commissioners are recommended by House of Commons and they have a non-inexhaustible ten-year term
  • Moreover, to shield their freedom from the administration, he/she reports straight to Parliament.
• US:
  • The six Federal Election Commissioners are delegated by the President with the counsel and assent of the Senate.

PRACTICE QUESTION:

Q. Independence and impartiality of the Election Commission of India is vital in ensuring free and fair election in the country. Comment.