Selection of poll officers

Faizan Mustafa

Professor of Law, Aligarh Muslim University

BERTRAND RUSSELL forcefully observed that ‘the merits of democracy are negative: it does not ensure good government, but it prevents certain evils.’ Indeed, democracy is not just about elections. It must imbibe, cherish and preserve certain constitutional values. When people have doubts about the impartiality of the Election Commission (EC), the whole democratic exercise gets vitiated. The judgment of the five-judge Supreme Court Bench on the appointment of the Chief Election Commissioner (CEC) and Election Commissioners is historic as it did refer to constitutional values that democracy must promote.

The CJI’s involvement may not be the best option as decisions about such appointments and election petitions would be placed before the CJI for constituting Benches.

There is an inherent problem in the matter of EC appointments. Unlike the other categories of unelected constitutional authorities, it is only the EC and the National Commission for Scheduled Castes where qualifications and eligibility are not laid down either in the Constitution or in any applicable statute. Non-prescription of qualifications and experience gives absolute power to the President to appoint anyone as the CEC.

Parliament passed the Chief Election Commissioner and other Commissioners (Conditions of Service) Act, 1991. This law is relatable to Article 324(5) of the Constitution, which contemplated a law made by Parliament regulating the conditions of service of the CEC and the Election Commissioners. Now, the Supreme Court has held that till Parliament enacts a law, these officers are to be appointed on the recommendation of a committee that would include the Prime Minister, Chief Justice of India (CJI) and the Leader of the Opposition in the Lok Sabha.

The court noted the process of EC appointments in several countries, yet it did not go too far. For instance, in Australia, the Election Commission is headed by a sitting or retired judge of the Federal Court and he is appointed by the Governor-General for a term of seven years; in Canada, the Chief Electoral Officer is appointed by a resolution of the House of Commons for a term of 10 years; in the US, the President appoints, but the Senate confirms election commissioners for a term of six years. Their names are recommended by a panel headed by the President of the Constitutional Court, a representative of the Human Rights Court, a representative of the Commission on Gender Equality and the Public Prosecutor. The term is seven years even in neighbouring Pakistan, where the Chief Election Commissioner has to be a sitting or retired judge of the Supreme Court or High Court or be qualified to be appointed as a Supreme Court judge. After the enactment of the Election Act, 2017, Pakistan’s Election Commission now has financial autonomy.

In the light of global wisdom, the court was right in prescribing a three-member selection committee. But similar selection committees for other high positions have not yielded great results. Moreover, the involvement of the CJI may not be the best option as decisions about such appointments and election petitions would be placed before the CJI for constituting Benches. It is better to leave such decisions to the Centre with the Opposition’s participation in the selection process.

The other major issue that Justice KM Joseph-led Bench has rightly identified pertains to the tenure. We have not bothered to give even six years’ term to most of our CECs. Sukumar Sen was appointed by the Nehru government as the first CEC of India in 1950. He got a long term of eight years. Kalyan Sundaram, appointed as CEC in 1958, also served for eight years. Subsequently, CECs have had shorter terms. VS Ramadevi had the shortest tenure of just 16 days. Her successor, TN Seshan, however, got a full term of six years.

For nearly four decades of our republic, there were only CECs. After the judgment in the TN Seshan case, the Election Commission of India became a team consisting of the Chief Election Commissioner and two Election Commissioners. With the term of Seshan coming to an end in December 1996, the trend began of appointing Election Commissioners as CECs. However, most Election Commissioners have also not served for the full six-year term.

Justice Joseph has rightly held this practice of appointing people who cannot get the full term as a violation of Section 4 of the 1991 Act. The court said a six-year term was an unambiguous mandate of Section 4. The court considered it to be a ‘mystery’ that out of four persons who were considered by the government, three had already retired and Arun Goel, who was eventually appointed Election Commissioner within 24 hours, was due to retire in a month’s time, and therefore, none could have got a six-year term. The court observed that a longer tenure had sound logic, ie the person appointed must have sufficient time to get himself geared up for the job and be able to assert his independence. Justice Joseph also opined that an assured term would instil in the appointee the confidence and inspiration to initiate reforms, bring changes and give his best. A short-lived stint would drain the much-needed desire to fulfil the objectives of the commission. The officer’s power and will to assert independence would wane. In a strongly worded observation, the court said six years’ term separately for the CEC and Election Commissioners was the rule and their superannuation at 65 years of age was an exception. Appointing people who could not get full six years defeated the policy of law, said Justice Joseph.

One hopes that in future, the government would appoint only such persons who would get a full term of six years as EC officers.

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