Yogendra Yadav ends his article (‘Junk Model Code of Conduct’, IE, October 29) with “…we desperately need someone to ensure free and fair elections”. The answer to this is available in the Constituent Assembly (CA) debates and lies in the process of appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). Before we come to the solution, some background will help.
After discussing the issue of appointment of the CEC at great length, the Constituent Assembly (CA) laid down Article 324 (2) of the Constitution saying, “…the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.” Parliament did not make any law on the subject and these appointments were traditionally made by the President acting on the advice of the Council of Ministers, which effectively means they have been appointed by the Executive.
In response to a PIL, the Supreme Court (SC) in a judgment of March 2, 2023, directed that the appointments of the CEC and the ECs “shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India” and that “this norm will continue to hold good till a law is made by the Parliament.” On December 23, 2023, Parliament made a law saying, “The Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of (a) the Prime Minister — Chairperson; (b) the Leader of Opposition in the House of the People — Member; (c) a Union Cabinet Minister to be nominated by the Prime Minister — Member.” This law, while upholding the letter of the SC judgment of March 23, completely overturned the logic which the SC judgment had described in great detail, with extensive references to CA debates.
Space constraints do not permit full discussion of the CA debates but the key point is contained in an amendment of B R Ambedkar’s proposal by a CA member, Shibban Lal Saxena. Part of what Saxena said is worth reproducing: “So what I want is this that even the person who is appointed originally should be such that he should be enjoying the confidence of all parties — his appointment should be confirmed not only by the majority but by two-thirds majority of both the Houses. If it is only a bare majority then the party in power could vote confidence in him but when I want a two-thirds majority then it means that the other parties must also concur in the appointment so that real independence of the commission may be guaranteed, in order that everyone even in Opposition may not have anything to say against the Commission, the appointments of the Commissioners and the Chief Election Commissioner must be by the President but the names proposed by him should be such as command the confidence of the two-thirds majority of both the Houses of Legislatures.”
Following Saxena’s lead, the following system for appointments of the CEC and ECs is proposed:
An existing committee of Parliament or a new committee formed for this purpose should propose the qualifications and requirements for persons to be appointed as ECs/CEC.
The proposals of the committee should be put to Parliament, in both Houses, and should be approved by a two-thirds majority of the members of Parliament present and voting.
Once the qualifications and requirements have been approved by Parliament, the same committee should be entrusted with the task of searching for and selecting individuals proposed to be appointed as ECs/CEC.
The committee should invite nominations/applications of individuals considered or appropriate for and interested in being appointed as ECs/CEC.
From the nominations and applications received, the committee should short-list persons considered appropriate.
The committee should meet the short-listed persons in open hearings which should be accessible for viewing by the public through video-transmission.
After the hearings, the committee should select individuals to be appointed as ECs/CEC.
4. The committee should send its recommendations to the Parliament for consideration.
5. Recommendations of the committee should be considered approved by Parliament only if approved by a two-thirds majority of the members of Parliament present and voting.
6. The recommendations approved by Parliament should be sent to the President for approval of the appointments.
7. Once appointed, such persons should stay in their positions for six years or until the age of 75 years, whichever is earlier. Persons above the age of 69 should not be appointed to allow a tenure of six years.
8. The stipulations of item 7 above should apply to each appointment independently. Every EC and CEC should have a tenure of six years.
The proposed system might be time-consuming and may even be considered impractical by critics. This may well be true given the way Parliament functions, or does not function, these days. But if India has to move towards a really functional and substantive democracy, parliamentarians have to learn to be responsible.
This is the only option if the uniqueness and criticality of the Election Commission for democracy is recognised. The SC judgment says that these positions “stand on a far higher pedestal in the constitutional scheme of things having regard to the relationship between their powers, functions and duties and the upholding of the democratic way of life of the nation”, and that “Each time… in the words of Dr Ambedkar… ‘a person under the thumb of the Executive’, calls the shots in the matter of holding the elections, which constitutes the very heart of democracy, even formal democracy, which is indispensable for a Body Polity to answer the description of the word ‘democracy’, is not realised”.
The writer is a founder-member of the Association for Democratic Reforms (ADR)
