The Supreme Court order directing the formation of a collegium consisting of the Prime Minister, Leader of the Opposition or the leader of the single largest party in the Lok Sabha and the Chief Justice of India for the selection of the chief election commissioner and election commissioners seeks to fill in vacuum in the Constitution regarding appointments to one of the most important institutions in our country.
Article 324 (2) of the Constitution defines its structure but does not elaborate on the process. Yet though the Constitution has left the job of defining the process to the Parliament, there has been no movement on this count as governments must have felt that there is little reason to dilute the powers they enjoyed. The Representation of the People Act, 1950, which gives the Election Commission exhaustive powers on the conduct of elections is also silent on the procedure. Even the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, which provides for the functioning of the commission, has conveniently avoided putting in place a transparent process for the appointments.
The Supreme Court was forced to step in when it was approached with a plea against the appointment of an election commissioner last year. The court, which examined the process of appointment, discovered that the process was completed at lightning speed — the person applied for voluntary retirement from government service, the process was completed in less than 24 hours and he was appointed as an election commissioner. Besides, the selection process, too, is generally an arbitrary one in which very few people are involved.
It cannot be denied that the Election Commission itselfis not without blemishes: Doubts have arisen in several cases as to polls being scheduled in a way that favours the ruling party. The Supreme Court is right when it observes that an official who is in a state of obligation or feels indebted to the one who appointed him fails the nation. A transparent mechanism must then be formed, and the court has given a formula. It is for Parliament to take it up and build on it.
The court has also called on the government to consider setting up a permanent secretariat for the commission and allow it to draw funds directly from the Consolidated Fund of India and not the government. Several aspects of the independence the Election Commission enjoys now are products of the various interventions of the judiciary and governments must heed this fact.
