Independence of Election Commission – UPSC GS2

A letter written by the Law Ministry states that the Principal Secretary to PM ‘expects‘ the Chief Election Commissioner (CEC) to be present during a discussion.

EC’s independence and credibility has come into question in the recent phase of state elections in Assam, West Bengal, Tamil Nadu, Puducherry, and Kerala. The Madras High Court blamed the EC.

Compromises the independent image of the EC: The Election Commission is a Constitutional authority whose functioning is insulated from the Executive. Attending meetings or discussions called by officers of the government compromises the independence of the commission in the public eye.

The tone of the letter also raises questions because as per protocol, an officer of the government, no matter how senior, cannot call the CEC for a discussion.

The CEC is very high in the warrant of precedence (9th), while the PS to PM is 23rd. So, summoning a high constitutional functionary to attend a meeting is in a violation of the spirit of the Constitution.

The independence of the Commission from the executive has been reiterated by the top court in its 1995 judgment in the TN Seshan v Union of India, wherein it observed that:

The Madras High court accused EC of spreading the 2nd wave of pandemic and stated that its officers should be booked for murder charges. Similarly, the Media also reported the institution negatively and held it responsible for the second wave.

The EC then approached the Supreme Court against such allegations claiming it as an act to undermine its credibility.

The supreme court will deliver the final verdict in due time, although it has issued some advisories:

Selection Procedure: The Chief election commissioner and other ECs are appointed by the President on recommendations of the central government. This raises a question of partisan behaviour of officials towards the ruling party.

Security of Tenure: EC is a three-member body with a chief election commissioner and two election commissioners. CEC enjoys a secure tenure like an SC judge. However, the other two ECs can be easily removed by the President on the recommendation of CEC.

Post Retirement Jobs: The Constitution has not debarred the retiring election commissioners from any further appointment by the government. The government uses this loophole for compromising the independence of members.

Lack of powers hindering independent functioning: It has no power to derecognize a political party or control the extent of party expenditure. Further, the model code of conduct is not legally enforceable.

Inadequate Political Will: In the last 70 years numerous political leaders and parties became part of the government. However, very few were willing and able to bestow sufficient powers to EC for ensuring independent functioning.

Misuse of State Machinery: In recent times, there has been a rising trend of targeting family members of election commissioners using state institutions like the Enforcement Directorate, Vigilance commission, etc. This creates additional pressure on them thereby compromising independent behaviour.    

Free and Fair Elections: A democracy can survive only when free and fair elections are conducted in it on a regular basis. This requires an independent EC which can curtail the use of money and muscle power and ensure adherence to electoral rules by all the stakeholders.

Non-Partisan Behaviour: The body can resist political pressures especially from the ruling party only when it enjoys a considerable degree of independence.

Maintaining people’s Trust: The trust of the masses over the electoral process is contingent upon the degree of independence enjoyed by the EC.

Acceptability of Verdict: The losing parties accept the electoral verdict as they believe in the impartial and independent functioning of EC. A failure to ensure the same can create distrust among the parties and in extreme situations can give way to a coup. For instance, the alleged election fraud in Myanmar elections gave the military an opportunity for a coup in February 2021.

Election Commissioner R.V.S. Peri Sastri (1986-1990) is credited with reforms like the introduction of EVMs and the reduction in the voting age to 18 years.

Chief Election Commissioner T.N. Seshan (1990-1996) implemented the model code of conduct, took steps against muscle and monetary power in elections. He also prohibited election propaganda based on religion and caste-based hatred.

The EC had launched a scheme for use of State-owned Electronic Media by political parties for providing a level playing field to every political party.

C-Vigil Application had been developed for reporting cases of MCC violation by the masses. It allows the masses to check the authenticity of EC in rectifying their requests.

EC must be appointed by a collegium as recommended by the Second Administrative reforms commission. It should comprise the Prime Minister, Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister, and the Deputy Chairman of the Rajya Sabha.

Government should expeditiously accept the 50 reform recommendations sent by the EC. These include:

Rules on decriminalizing politics, transparent party funding, paid news

Empowering the EC to countermand an election in cases of bribery.

EC should make judicious use of its plenary powers under Article 324. In the Mohinder Singh Gill case, the SC said that Article 324 gives wide-ranging powers to ECI to ensure free and fair elections.

There must be a prudent cooling-off period for election commissioners in order to strengthen independence.

Expenditure of EC should be charged upon the Consolidated Fund of India similar to other constitutional bodies such as the UPSC.