A Supreme Court decision from 2020 prompts ADR to pray for similar direction on Election Commission, but...

Yet another petition was filed before the Supreme Court this week by the Association of Democratic Reforms (ADR) for directions to constitute a collegium to select the members of the Election Commission of India.

The petition is apparently prompted by the Supreme Court declaring search-cum-selection committees dominated by central government nominees to identify members of tribunals as unconstitutional in Rojer Mathew vs South Indian Bank case (2020). Since the government itself is a litigant in most disputes referred to the tribunals, the court held, it was unconstitutional for the executive to have the power to select members of adjudicating tribunals.

ADR’s petition draws a parallel with the Election Commission of India and draws the court’s attention to the ECI’s quasi-judicial function when it has to decide disputes involving the executive. Just as it has been deemed unfair and unconstitutional for the executive to be the sole appointing authority in the case of tribunals, the petition pleads, it is unfair to allow the executive unfettered powers to appoint Election Commissioners.

In the Constituent Assembly, prof Shibban Lal Saksena had raised this point and suggested that the Election Commissioner’s appointment should be confirmed by two thirds majority of MPs in a joint sitting of Parliament. Dr B.R. Ambedkar, Chairman of the Drafting Committee, had concurred and said, “There is no use of making the tenure of the Election Commission a fixed and secure one, if there is no provision to prevent either a fool or knave or a person who is likely to be under the thumb of the Executive…”.

But while Dr Ambedkar and the Constituent Assembly inserted a provision for future governments to make suitable laws for appointment of Election Commissioners, this was not acted upon by successive governments.

V.M. Tarkunde Committee in the 1970s, Dinesh Goswami Committee in 1990, the report of the second Administrative Reforms Commission in 2007 and the 255th report of the Law Commission had made similar recommendations to constitute a collegium.

The Citizens’ Committee on Election (CCE) report in March, 2021 prepared under the supervision of Supreme Court Justice Madan Lokur (rtd) had also cited the dubious conduct of the Election Commission in the general election of 2019. The EC, it found, had delayed announcing the election to enable the Prime Minister to complete inauguration of 157 projects. It turned out to be the longest election in the history of India and the Commission treated the ruling party with kid gloves, even ignoring the politicization of the Army described as ‘Modi’s Sena’ during the campaign.

The petition, therefore, prays for declaring the present system of appointment of Election Commissioners as unconstitutional.