SC decision step in the right direction: Former CEC Gopalaswami

“By including the leader of opposition, the frequent charge levelled by opposition parties that the Commission was biased in favour of the ruling party, would be blunted to a great extent,” he said.

In addition, Gopalaswami said that with the inclusion of the Chief Justice of India (CJI), the panel's selection is complete in every sense.

In his estimate, “This would be the ideal bipartisan approach to the selection of an office that upholds democracy in the country.”

The SC, on March 2, ruled that the appointment of the CEC and election commissioners will be done by the president of India on the advice of a committee comprising the prime minister, leader of opposition in the Lok Sabha and the CJI.

A five-judge constitution bench headed by Justice KM Joseph, in a unanimous verdict, held that this norm will continue to hold good till a law on the issue is made by Parliament.

Gopalaswami, however, also added that there can be no foolproof system, which would ensure that the man being appointed to India’s highest election body, is the best man available. “While the system has worked fine, there has been the odd occasion when somebody not fit and capable of holding such a high office has been appointed, and it is difficult to develop safeguards against it,” he pointed out.

This significant judgment that seeks to change the way in which India’s top election officials are appointed, can potentially have far-reaching implications. Under the current system, the central government essentially has a free hand in appointing recently-superannuated IAS officers, with no public accountability, to the Election Commission. Some recent appointments have raised the hackles of the apex court.

It was particularly riled by the 'mechanism' through which former IAS officer, Arun Goel, was appointed EC in November 2022. The SC directed the government to produce the file relating to his appointment, adding to the ongoing fracas over the appointment of judges. Tersely noting that the file relating to the appointment of Goel had moved "in the shortest possible time, superfast… not travelled even 24 hours", the apex court asked the Centre if there was "any haste or tearing urgency".

Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections to parliament, state legislatures, the offices of the president of India, and the vice-president, shall be vested with the Election Commission. Operating under the authority of the Representation of the People Act, it is empowered to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.

In reality, however, such overweening powers could, on occasions, be illusory, if the selection process of its members is flawed.

In November, 2022, the SC upbraided the government, stating that it pays mere lip-service to the independence of the election commissioners. Justice KM Joseph, had then observed that the “CEC’s tenure is highly truncated,” adding for good measure that the previous Congress-led UPA government had six CECs in just eight years, but "after the present government took over, from 2015 to 2022, for seven years, we have had eight CECs”.

A close look at the tenures of the members of the Election Commission reveals that some of them have not even got close to the full term of six years prescribed under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991. Section 4 of this Act states that the term of a CEC and election commissioners is six years or till the age of 65 years, whichever is earlier.

Gopalaswami, however, feels that the system of tenure, such as the one existing now, is good enough. “If a man is appointed at 63, he has a two-year tenure; if he or she is taken in at 64, then it is a one-year tenure. It cannot be flawed.”

The former CEC argues that the “system has worked well for the last seven decades and CECs have been appointed by several governments’’, and hence, should not be flawed beyond a point.

In December last year, CPI (M) member from Kerala, John Brittas, introduced the Constitution (Amendment) Bill, 2022, which proposed to set up a committee headed by the CJI, which includes the Lok Sabha Speaker and leader of opposition for the appointment of ECs.

Ultimately, says Gopalaswami, “It is difficult to predict what may happen tomorrow. It is impossible to read a person’s career record and arrive at a definite conclusion. We should wait to see how the system works.”