Double Check: Are India's Election Commissioners Being Appointed Unconstitutionally?

Image credit: Subhashish Panigrahi/ Wikimedia Commons

The Indian parliament's winter session saw it become a new frontier in a brewing controversy over the appointment of Indian election officials.

During the session, the Indian National Congress's (INC) Manish Tewari introduced a private member's bill in Lok Sabha, seeking a change to the selection of Election Commissioners in India. Under the new proposal, the Chief Election Commissioner (CEC) and Election Commissioners (ECs) would be selected by a committee comprised of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India, instead of just the executive branch of government.

The bill's introduction follows the furore created the previous month over the appointment of bureaucrat Arun Goel as an EC of the Election Commission of India on November 19. It was not just the opposition party that raised eyebrows over Goel's appointment – the Supreme Court has been asking questions about it too.

Late last month, commenting on how the stipulated clearances for Goel's file had moved "superfast... not traveled even 24 hours," the apex court had asked the Centre whether there was a "tearing urgency" to do so; the vacancy he filled had been open since May. 

The questions from the Supreme Court, on an issue so sensitive to Indian democracy, went viral on social media and made the front pages of every newspaper, going on to generate debate and thinkpieces from experts about whether there was a need to reform the Election Commission's processes. 

Even before the comments by the apex court, the case before it was a contentious one, with the petitioners asking the court to establish a body similar to the judiciary's collegium to make appointments of election officials. The central government has vehemently opposed these widely-reported pleas, which argue that the current system violates constitutional principles.

With the case set to continue before a five-judge Constitution Bench headed by Justice KM Joseph, questions continue to be asked about the appointment of Arun Goel as EC and whether the current system actually adheres to the Constitution. These need answering to ensure the integrity of the electoral process, especially with the slate of assembly elections scheduled for 2023 and the next Lok Sabha election on the horizon.

Was Goel's Hasty Appointment Legal?

Goel was officially appointed EC on November 19, one day after he took voluntary retirement from his position as secretary of the Union Minister of Heavy Industries. The position had been vacant since May 15, but his appointment was only processed on November 18, soon after the Supreme Court had begun its hearings regarding changes to the appointment process.

"We are not questioning the merits of Arun Goel's credentials but the process," the Supreme Court said. "Can you show what prevailed upon the government to initiate the process in a manner that everything is done in the shortest possible time, superfast. The same day process, the same day clearance, the same day application, the same day acceptance, and the same day appointment… The file has not traveled even 24 hours. What kind of evaluation was there?" Justice Ajay Rastogi asked.

In response, Attorney General R. Venkataramani, representing the Centre, said he could show that since 2015, every appointment to these posts had been processed within two to three days and that it was not uncommon for official appointments to be made within 12-24 hours. 

When a judge from the bench asked for details of the mechanisms involved in processing Goel's appointment, Venkataramani said a list of officials in the Secretaries position is prepared based on which a panel of names is sent for consideration to the prime minister and president. He explained that the prime minister recommends a particular name with a note to the president, adding that "it's all based on time-tested convention. So it was not a pick-and-choose at all." 

The petitioners before the apex court have raised concerns about the EC's independence under this current system, given the ruling government has full control over it, including setting the criteria for selection.

"If four names were chosen, the court wanted to know what the criteria were. Out of the four, when the prime minister chose one, what kind of application of mind can we expect if it's done in just a few hours?" Association for Democratic Reforms (ADR) cofounder Jagdeep Chhokar, whose petition is being heard at the Supreme Court, told Logically. "Yes, it has stood the test of time, but it is not necessarily tested. Does this mean the criteria used for shortlisting people or application of mind for choosing one of four should not be on record?" 

Retired IAS officer M.G. Devesahayam, who has served as a returning officer for parliamentary and state assembly elections, questions the speed of appointments, saying quick appointments are impossible considering the lengthy process of background checks associated with an important position.

"Normally, you have to take action months in advance, screen career records, and see if there are criminal or corruption cases," he told Logically. "A panel is created to get approval and clearances for the shortlisted people. This completion time in 24 hours is nothing but a joke, like instant coffee. It's laughable."

Despite these concerns, Goel's appointment appears to have been by the book – subject to any irregularities in the procedure followed that are not public knowledge but which may be discovered when the Supreme Court examines his file.  

Does the Current Appointment System Violate Constitutional Principles?

Referring to Ashok Lavasa's controversial resignation from the EC after serving for close to two years, having refused to toe the line several times, critics say the current standard operating procedure is shrouded in mystery. Chhokar says the experience and expectations of appointments are "a dirty secret that has stayed buried" for a long time. 

The opacity in appointments of the two election commissioners– one of whom becomes the CEC eventually – is aided by the fact that the Constitution does not explicitly set out any process. The apex court also noted that the "silences of the Constitution" are being exploited by all due to the absence of a law governing CEC and EC appointments. 

Article 324(2) of the Constitution stipulates that there will be a CEC and as many ECs as fixed by the President. It also states that their appointments are to be made by the President, "subject to the provisions of any law made on that behalf by Parliament." 

The provision therefore authorizes Parliament to enact a law to govern appointments of Election Commission officials – but this has been ignored by successive governments for the last 72 years. As a result, appointments have been made by the President, with the selection arrived at by convention rather than any clearly defined rules. 

Chhokar argues that the failure to enact a law to govern the appointments goes against the Constitution's intent. "The Constitution is not silent, it says 'in accordance with the law made by the Parliament,' but the parliament has not made this law. The Constitution's mandate has not been carried out in the Parliament," he told Logically. "As the Supreme Court bench said, every government wants to have control over a constitutional body like the election commission." 

It should be noted that Article 324(2) does not mandate Parliament to enact a law on the appointment of the CEC and ECs, instead envisaging its power to do so and clarifying that any such law would supersede the status quo.

M.G. Devasahayam acknowledges that the law has been left vague and general but believes that the "constitutional silence" did not in itself completely hamper the functioning of the electoral body, as the CEC post and tenure are constitutionally protected. 

"But CECs in the last few years are not acting independently at all in spite of it. It is the caliber and character of the person appointed," he said, which is responsible for the threat to the Election Commission's sanctity. 

As an example of this, Devasahayam refers to the current Election Commissioner and former Uttar Pradesh (U.P.) Chief Secretary Anup Chandra Pandey, who, according to him, had worked directly under U.P. Chief Minister Yogi Adityanath and supported the latter's policies, including writing letters hailing and praising encounter killings.

Does the Appointment Process Need to Be Reformed to Ensure Electoral Integrity? 

On paper, there is nothing unconstitutional about the current appointment system. However, given the importance of free and fair elections to democracy (which the Supreme Court has held to be part of the 'basic structure' of the Constitution), reforms to ensure the EC's independence cannot be ignored – especially if there are credible threats to that independence from the status quo.

While concerns over the electoral body's sanctity have been raised in recent times in light of the strength of the executive since 2014, attempts to clarify the appointment process and strengthen it have been around for much longer. Decades-long attempts to introduce laws making the systems more robust have failed – a list of over 20 reform proposals was compiled in 2004, with more proposals over time that remain pending. These range from strengthening the EC to handling model code of conduct violations, The Hindu reported. But parties across the board have failed to consider these. 

In 2000, The National Commission to Review the Working of the Constitution recommended that the CEC and other commissioners be appointed by a body composed of the Prime Minister, the Leaders of the Opposition, the Speaker of the Lok Sabha, and the Deputy Chairman of the Rajya Sabha. 

The 255th Report of the Law Commission in 2015 made similar recommendations while including the Chief Justice of India (similar to Tewari's recent private member's bill). It also suggested ways to secure commissioners from arbitrary removal, similar to what the CEC has. Although the Supreme Court's judgment in the 1993 TN Seshan case accorded ECs equal powers as the CEC, it did not provide them with similar constitutional protections against removal or changes to their conditions of service.

"Without this, they may hesitate to act independently, which they otherwise might if they were truly secure," former CEC Navin Chawla wrote in an article for The Hindu on December 1, 2022." In the absence of full constitutional security, an Election Commissioner could feel they must keep on the right side of the Chief Election Commissioner. They might also feel they should remain within the ambit favored by the government," he explained.

Chawla noted in his article that an additional complication is the selection of the CEC; in the absence of any rules for elevation, the ECs cannot know whether or not they will be elevated to the top post.

Chhokar also raises a similar point. "If I am a career bureaucrat looking forward to my next promotion, then I would want to be made Chief Election Commissioner, and that decision is exclusively in the hands of the government of the day, which means the party in power. Bureaucracy is the handmaiden of the political executive," he adds. 

"Government does not want to lose control, so they want to keep controlling the Election Commission, but in the process, the politics keep declining," says Devasahayam. "Other than the CEC, the election commissioners are like ordinary employees. The fundamental values are about centralizing power, and it's being done in a more devious way now. For instance, Home Minister Amit Shah made derogatory remarks about a community during the Gujarat elections. When people wrote to the Election Commission seeking action, it said he did no such thing. They are completely condoning it."

Following the hearings at the Supreme Court, former CEC SY Quraishi argued in The Indian Express that although the record of the commission and its heads has mostly been exemplary, hope can never be a strategy. Security of tenure, and a wide-based body appointing the commissioners, are necessary reforms, in his opinion.

In addition to the proposal for a high-level committee for the selection of election commissioners (similar to the committee which selects the director of the Central Bureau of Investigation), the other suggestion for reforming the appointments process is to establish a judicial collegium-type system.  

Appearing for the petitioners in the current hearings, advocate Prashant Bhushan said an independent body like a collegium - similar to how judges' names are recommended - should select the CEC and EC. 

Criticism for this proposal has not just come from the Centre, but also from those who are concerned about the Election Commission's independence.

"I'm not totally in agreement with a collegium system because we know it has not worked very well with other appointments like that in the Central Bureau of Investigation. One person puts in a note of dissent, and the appointment still happens," Chhokar says. Instead, he recommends the creation of a parliamentary committee to lay down conditions for appointment of the officials, which would have to be passed by Parliament with a two-thirds majority. A fresh committee should then be tasked with recommending names for appointment of the commissioners, which would also then be passed with a majority by Parliament.

Devasahayam, on the other hand, supports the idea of a collegium, as he believes political leaders should be far away from the process. "Political parties are a rogue entity. Election Commission is a different cup of tea, they're supposed to monitor political parties and conduct free and fair elections. How can politicians be a part of this?"

In the absence of adequate legislative measures, the apex court has previously laid down safeguards and rules for the appointment of the CBI Director and Central Vigilance Commissioner while also creating the collegium system for judicial appointments. Precedent can therefore be found to argue it has the power to establish a mechanism for appointments to the Election Commission.

It remains to be seen, however, if the court finds sufficient problems with the current system to take any steps toward reform.

(This article was updated on December 23, 2022 to provide additional context on how the Supreme Court's comments raised questions about the Election Commission's processes that are unclear and have the potential to lead to misinformation.)