Why in news?  The ex CEC S Y Quraishi has recently pointed out the issues & challenges in the appointment of CEC and  how to ensure transparency .

Key Issues and Suggestions Pointed Out in the Article:

1. Lack of Transparency and Impartiality in the Appointment Process:

• The article highlights concerns over the lack of a transparent and bipartisan process for appointing election commissioners (ECs), which undermines the independence and impartiality of the Election Commission of India (ECI).
• The Election Commission is seen as a cornerstone of India’s democratic process, and its integrity is critical to maintaining public trust in free and fair elections.

2. Demand for Bipartisan Appointment Process:

• Civil society organizations (CSOs), including the Association for Democratic Reforms (ADR), have been advocating for a transparent and bipartisan process for the appointment of ECs, which would ensure the independence of the ECI.
• The ADR first filed a petition in 2015 challenging the executive’s exclusive control over appointments, arguing that it compromised the ECI’s independence.

3. Supreme Court Ruling and the 2023 Act:

• The Supreme Court’s 2023 order (in the case of Anoop Baranwal vs Union of India) emphasized the need for a collegium-based appointment involving the Prime Minister, the Leader of the Opposition (LoP), and the Chief Justice of India (CJI), until Parliament passed a law to regulate the process.
• Parliament’s 2023 Act passed a law that created a partisan appointment process, excluding the CJI from the selection panel and giving the power to the Prime Minister and a cabinet minister (nominated by the PM), alongside the LoP.

4. Executive Overruling Supreme Court’s Spirit:

• The 2023 Act is seen as overturning the spirit of the Supreme Court’s ruling, as it creates a partisan collegium, where the Prime Minister and the cabinet minister hold dominant influence, making the LoP’s role irrelevant.
• This undermines the bipartisan spirit and the ECI’s independence, and the article points out that this raises significant concerns about the optics of such an arrangement.

5. Ongoing Legal Challenges:

• The ADR and other petitioners challenged the 2023 Act in January 2024, arguing that it violated the constitutional principles set by the Supreme Court.
• Despite pending judicial review, the government proceeded with EC appointments under the new framework in March 2024, leading to further controversy.

6. Importance of a Bipartisan and Transparent Appointment Process:

• The article suggests that India’s Election Commission should adopt a bipartisan and neutral collegium-based system for the appointment of election commissioners, drawing from global best practices such as those in the US, South Africa, Brazil, UK, France, and Nepal.

7. Role of the Chief Justice of India in the Collegium:

• The article argues that if the CJI is reinstated in the collegium, as initially intended, the litigation challenging the current law might collapse, leading to a more neutral and transparent process.
• The government should demonstrate the political will to make necessary changes and ensure the integrity of India’s democratic process.

8. Importance of Public Perception and Electoral Integrity:

• The article emphasizes that the optics of the appointment process are crucial for maintaining public confidence in the independence of the Election Commission and ensuring the integrity of India’s elections.

Key Suggestions:

• Reinstating the CJI in the appointment collegium would restore the balance and transparency that the Supreme Court intended.
• The government should align its actions with the spirit of the Supreme Court ruling to ensure public confidence in the Election Commission’s independence.
• A bipartisan and neutral appointment system, inspired by global practices, should be adopted to ensure the integrity of India’s electoral process.

These points reflect the ongoing struggle for a more transparent, impartial, and independent Election Commission, which is critical to upholding India’s democratic values.

Recommendations for Reforms in the Election Commission:

Over the years, several committees and commissions have made recommendations to ensure the autonomy and independence of the Election Commission. Some key recommendations are:

1. The 2004 Law Commission Report:

The Law Commission of India (in its 255th report, 2015) highlighted the importance of an independent and impartial Election Commission. The Commission made the following recommendations:

• Creation of a statutory framework for the appointment of Election Commissioners, providing for a multi-member panel or collegium for appointments, rather than being under the control of the executive.
• Independent funding: The ECI should have the power to propose its own budget and not be dependent on the government for its funding.
• Role of the Chief Justice of India (CJI): The Commission recommended that the Chief Justice of India be included in the selection committee for the appointment of Election Commissioners to ensure a more neutral and bipartisan process.

2. The 2015 Supreme Court Judgment in the ADR Case (Association for Democratic Reforms v. Union of India):

• The ADR Petition: In 2015, the Association for Democratic Reforms (ADR) filed a petition in the Supreme Court, challenging the current system of appointment of Election Commissioners, arguing that it compromises the independence of the Election Commission. The ADR sought a collegium system to ensure the impartiality and independence of the ECI.
• Supreme Court Ruling: In March 2023, the Supreme Court observed that Article 324(2) of the Constitution, which deals with the appointment of the CEC and ECs, mandates the creation of a law by Parliament to determine the appointment process. The Supreme Court’s 2023 verdict directed that until such a law is made, the CEC and ECs should be appointed by the President on the recommendation of a collegium comprising the Prime Minister, Leader of the Opposition (LoP), and Chief Justice of India (CJI).
• This decision was aimed at making the process more impartial and independent, reducing the executive’s influence over the appointments.

3. The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023:

• Parliamentary Action: In December 2023, the Parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. However, this law excluded the Chief Justice of India (CJI) from the selection panel, which was part of the earlier draft.
• Government’s Position: The new law empowered a committee consisting of the Prime Minister, a cabinet minister nominated by the PM, and the Leader of the Opposition (LoP) to make appointments to the ECI.
• This law has been criticized for creating a partisan system rather than the bipartisan process the Supreme Court envisioned. Many civil society organizations, including ADR, challenged this law in 2024, arguing that it undermines the impartiality and spirit of the 2023 Supreme Court ruling.

4. Committee on Electoral Reforms (Dinesh Goswami Committee – 1990)

• This committee suggested a multi-member Election Commission rather than a single-member commission. It also called for enhanced powers for the Election Commission to deal with electoral fraud, and recommended reforms in the appointment process to make it more independent.

5. The 2010 Election Commission Committee Report (by T.S. Krishnamurthy):

• This report made several recommendations for improving the ECI’s independence and powers, including:
  • Constitutional protection for Election Commissioners to ensure security of tenure, preventing arbitrary removal.
  • Financial autonomy: Ensuring that the ECI is not dependent on the government for budget allocation, which could compromise its independence.
  • Expanding the role of ECI in monitoring the implementation of electoral reforms