‘Greatest headache’: Constituent Assembly on appointing Election Commission

Why in the News

The Constitution shielded the Chief Election Commissioner (CEC) from easy removal but left the choice of Election Commissioners to a future law, and the law Parliament finally made gives the government two of three seats on the selection panel. Members of the Constituent Assembly warned of exactly this risk in June 1949, asking who chooses the referee when the government is also a contestant.

What did Article 324 settle, and what did it leave open?

1. Article 324: It creates the Election Commission of India (ECI) to run elections to Parliament, State legislatures, President and Vice-President. The Commission is like a referee in a match where the government is also a player.
2. Removal shield: The CEC can be removed only in the manner of a Supreme Court judge, so a government cannot easily dislodge an inconvenient CEC.
3. Appointment left open: The Constitution left the appointment mechanism to a law of Parliament. For 74 years, Parliament passed no such law.
4. The takeaway: The Constitution secured the CEC’s tenure but not the independence of selection, which is where today’s dispute lies.

What did the Constituent Assembly fear?

1. Saxena’s objection: On June 15, 1949, Shibban Lal Saxena objected that presidential appointment meant the government of the day choosing the referee. A ruling party could install “a staunch party-man” as CEC.
2. Design, not character: Saxena accused no one, but refused to rest a safeguard on one man’s character: “We are making a Constitution for ever, and not only for today.”
3. Two-thirds proposal: He proposed a two-thirds majority in Parliament for appointments, so that no single party could install its own nominee. The Assembly voted it down.
4. Kunzru’s warning: H N Kunzru asked why the Centre would be less biased than the provinces, which were kept out of elections for that reason. Without trustworthy Commissioners, he warned, “democracy will be poisoned at the source”.
5. Ambedkar’s dilemma: B R Ambedkar called the issue one of the Drafting Committee’s “greatest headaches”. He weighed the US model of Senate confirmation but feared importing its political games.

How did the Supreme Court and Parliament answer the question in 2023?

1. Anoop Baranwal v. Union of India (2023): The Supreme Court ruled that until Parliament legislated, the Prime Minister, the Leader of the Opposition and the Chief Justice of India (CJI) would recommend appointments.
2. Balanced design: The panel was built so that no single side controlled the outcome.
3. The 2023 Act: The Chief Election Commissioner and Other Election Commissioners Act, 2023 replaced the CJI with a Union Cabinet Minister nominated by the Prime Minister.
4. Executive majority: The Prime Minister and his nominated Minister hold two of three seats, so the government has a built-in majority.

Is the problem individual integrity or institutional design?

1. No proof of bias: Nothing shows that a Commissioner appointed under the new law will act improperly, or that the Commission has turned partisan.
2. Referee problem: The government is a contestant in every election. The real question is whether one contestant should hold disproportionate sway over choosing the referee.
3. Appearance of independence: Selection must be impartial and must also appear impartial, since a referee the players do not trust cannot settle their contests.
4. Same question as 1949: The debate has returned to the Assembly’s concern, whether the mechanism keeps enough distance between the government and the referee.

Challenges

1. Financial dependence: The ECI’s budget is not charged on the Consolidated Fund of India (spent without a vote of Parliament), unlike that of the Supreme Court.
2. Unequal tenure security: Election Commissioners, unlike the CEC, can be removed on the CEC’s recommendation.
3. Post-retirement posts: No constitutional bar stops Commissioners taking government jobs or governorships after tenure.
4. Trust deficit: Opposition parties allege the ECI acts more slowly against ruling party star campaigners.

Way Forward

1. Neutral panel member: Parliament should add a member from outside the executive, such as the CJI, to the selection panel.
2. Equal removal protection: Give Election Commissioners the CEC’s removal safeguard, as the Tarkunde Committee (1975) and the Goswami Committee (1990) suggested.
3. Charged expenditure: Charge the ECI’s expenses on the Consolidated Fund, as the Law Commission’s 255th Report recommended.
4. Cooling-off period: Bar Commissioners from government posts for a fixed period after retirement.

Conclusion

The Constituent Assembly named the danger of a government choosing its own referee and left the remedy to Parliament, whose answer has revived that danger. The unresolved question is whether the selection of those who run elections can be made, and seen to be made, independent of the contestants.

Matching Previous Year Question

“[2026, GS2, 10 marks] Is the right to vote a fundamental right? Discuss the position of the Election Commission of India while undertaking the revision of electoral rolls. Can it also examine the question of citizenship of voters?”