Independence above all for electioneers

It’s good that GoI has not included the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill in the list of Bills given to the Opposition in last Sunday’s all-party meeting. Perceptions matter. And, in its current form, the intended tweaks in the law to appoint top election officers don’t look safe from ‘executive intervention’. As the apex arbiter of elections, the Election Commission of India (ECI) must be like Caesar’s wife: above suspicion. GoI needs to go back to the drawing board to ensure its legislation enhances ECI’s independence, not cast doubts over its autonomy.

As things stand now, election commissioners are appointed by the president on advice of the prime minister from a shortlist prepared by the law ministry. In keeping with the expectations of the Constitution framers, the Supreme Court directed that election commissioners be selected via a collegium comprising the PM, leader of Opposition in the Lok Sabha and Chief Justice of India (CJI) till the enactment of the amended law. The Bill in its current form replaces the CJI with a Cabinet minister, contradicting the letter and spirit of the Constitution bench. Including the CJI, however, is not desirable as it allows the judiciary to stray outside its jurisdiction. The Bill follows from the verdict of the Supreme Court-appointed five-judge Constitution Bench in March. Drawing on the Constituent Assembly debates, the bench concluded that Article 342(2) encodes the constitutional expectation that Parliament would pass a law to ensure that ECI is free from executive interference. This expectation has remained unfulfilled.

The proposed law will have to be tested on the touchstone of whether it adequately protects the independence of the ECI. Sole executive control over selection as proposed fails this test. A rethink is necessary. GoI should turn to experts to draw up legislation that keeps this most critical instrument of democracy above the fray of murky partisan politics.