Revisiting the Constituent Assembly debate on the ECI
The members were keen that the ECI should remain independent and separate from the executive branch in order to ensure ‘purity of election for fairness in elections’
OF late, there has been increasing concern about the institutional wellbeing of the Election Commission of India (ECI). The institutional decline in terms of the ECI's autonomy and neutrality has been flagged. It is in this context that this comment revisits the Constituent Assembly (CA) debate proceedings concerning the ECI, held from May 16 to June 15, 1949 (Constituent Assembly Debate: Official Report. 2014. Lok Sabha Publication, Vol. VIII, pp. 915-61).
The revisit serves three purposes. First, it tells us about the way the founding members envisaged the broad nature of the institutional framework of the ECI.
Second, revisiting enables us to discover the 'original intent' of the Constitution makers while instituting the ECI as an election management body.
Third, it also helps in discussing about to what extent the institution has been able to live up to its expectations in its seven-and-a-half-decade existence. And, how the long-term question mark over its neutrality can be attributed to a certain oversight of the CA members.
The debate
The ECI may well be regarded as an 'original' institutional innovation of the CA as there was no election management body (EMB) in colonial India, nor in the Great Britain. The CA debate, while envisaging the ECI, mainly veered around three issues.
First, whether the ECI was to be made a permanent constitutional body or to be set up just before every General Election. The members decided for permanency because they correctly anticipated that the five-year electoral cycle might be disrupted in future.
Second, the members also debated whether to institute the ECI as a centralised integrated institution or, alternatively, set up a separate commission for each constituent state as per the federal principle.
BR Ambedkar, supported by KM Munshi, defended the proposal to structure the ECI as a centralised institution on the grounds that the presence of a 'mixed nature of population' in some provinces led to the fear that there could have been deliberate exclusion of racial or linguistic minorities if elections were to be held under the jurisdiction of the provincial executive.
Third, how to ensure the independence and neutrality of the Chief Election Commissioner (CEC) and the ECs was another important part of the debate. Members like HN Kunzru and Shibban Lal Saxena raised their apprehension that, with the appointment process remaining under the exclusive control of the Central government, there would be the temptation to appoint a 'staunch party man'.
The members were keen that the ECI should remain independent and separate from the executive branch in order to ensure 'purity of election for fairness in elections'.
Saksena proposed the provision of a parliamentary two-thirds majority to ratify the appointments so that "everyone, even in opposition, may not have anything to say against the Commission."
Ambedkar proposed an 'Instrument of Instruction' in place for the purpose of appointments. On the suggestion of Munshi, Clause 2 was added to the draft Article 289 (now 324), stipulating that the appointing power of the President shall be 'subject to the provisions of any law made on that behalf by Parliament'.
Saksena and Kunzru also raised their concerns about the manner of removal of the ECs, asking for the same security of tenure to be accorded to them as for the CEC. While the 1950 Constitution did provide for the security of tenure of the CEC, it was inexplicably left for the future Parliament to legislate about the appointment procedure.
The critique
While the CA can be lauded for framing the ECI as a permanent federal body with constitutional mandate, it can be critiqued on the following grounds.
First, leaving the appointing power subject to legislation by future Parliament and allowing the government a free hand till then, an instance of 'constitutional incrementalism', needs to be questioned.
Was it not quite naïve on the part of the CA members to think that the political executive that invariably dominates the legislature in a parliamentary system would be willingly ready to give up 'such a valuable power' — as evident in the way the NDA government moved quickly to legislate, upturning the court judgment in the Anoop Baranwal vs Union of India, constituting a collegium comprising not only the Prime Minister and the Leader of the Opposition but also a neutral Chief Justice of India?
Second, while the broad constitutional framework, as envisaged in Article 324, has allowed both a 'judicially active' Supreme Court and 'activist' CECs in the past, a 'solid underpinning' to lay down new electoral rules and procedures whenever the legislative bodies have been 'slow to give guidance', it has also led to instances of 'overreach' by the ECI, raising doubt about the institutional neutrality.
Third, election commissioners (ECs) not being given the same constitutional safeguards as in the case of the CEC regarding the security of their tenure (they can be removed by the President simply on the recommendation of the CEC), despite now having the same powers post the TN Seshan vs Union of India judgment, undermines the position of the ECs, coming in the way of the democratic functioning of the ECI, having serious fallouts, like seen in the case of the resignations of Ashok Lavasa and Arun Goel.
The past and the present experiences have shown that the CA members would have done well to take care of drafting a more detailed institutional framework, both on mapping out the ECI mandate and the appointment and security of the tenure of election commissioners.
Views are personal
The author teaches in the Department of Political Science, Panjab University, Chandigarh
