Collegium For Appointing Election Commissioners Will Enhance Their Independence : Former CEC SY Quraishi

Commenting that the system of appointment of Election Commissioners is defective, former Chief Election Commissioner Dr.SY Quraishi said the process should be revamped to ensure the neutrality and independence of the Election Commission of India.

Speaking in an interview with LiveLaw, he said, "I have spoken on many occasions that the most powerful Commission in the world has the most defective system of appointment. Unilaterally the Executive of the day is appointing the Election Commissioners whereas all over the world there is a wider system of consultation".

He was speaking in the context of a Constitution Bench of Supreme Court recently reserving judgment on PILs seeking an independent mechanism to appoint Election Commissioners. One of the suggestions made before the Court was to have a "collegium" comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition to select Election Commissioners.

Quraishi, who was the CEC during 2010-2012, said that in many countries, there is Parliamentary scrutiny of the appointments of Election Commissioners. In some countries, there is a live interview of the candidates in the national television.

The former bureaucrat said that although his appointment was under the existing system, he had always raised concerns about the process.

 "This system needs to improve. That's what we have been demanding. As CEC, although I was a beneficiary of the old system, I wrote to the government and before me several of my predecessors wrote the same thing to the government seeking reforms.  Hopefully this bench will decide that there will be a collegium..", he said.

He pointed out the for the appointment of the CBI Director, we already have a "collegium" system where a High Powered Committee of PM, CJI and the LoP approves the appointments.

"We are already familiar with the collegium system. We have collegium for CVC, CIC and even Director of the CBI. Although the Director of CBI is not a statutory body and is just a head of a department, the Supreme Court decided that there should be a collegium as the CBI director performs a sensitive function. Then the Election Commission, which is a Constitutional body performing politically sensitive functions, surely deserves to have a collegium", he opined.

Regarding the Centre's opposition to judicial interference in the matter, he said that the Court has every right to ask why a law has not been made for the appointment process of Election Commissioners as envisaged by Article 324(2) of the Constitution of India even after 70 years.

"It is the Executive which initiates the proceedings in the Parliament. So it is the failure of the successive executives", he said.

As regards the Court  questioning the Government over the "tearing hurry" shown in appointing Arun Goel as the Election Commissioner while the matter was being heard, Qureishi said "it seems the Government has been caught on the wrong foot".

"The post was lying vacant since May. There were two States going to the polls -Gujarat and Himachal Pradesh. And the Government felt no urgency at all, whereas the elections to two states are important matters. The government did not find it necessary to fill the vacancy of the third member, and suddenly in 12 hours if they do it so, obviously the question will be raised and that is what the court has asked", he said.

Qureishi highlighted that having an independent mechanism will boost the public confidence in the system.

"Although over the last 70 years, the government of the day has always appointed the Election Commissioners, except for one or two, all of them have conducted themselves very well. They have acquitted themselves with honor. So much so that the Election Commission of India has acquired worldwide reputation. India's elections are considered  model elections. Hillary Clinton went to the extent of calling it the gold standard. So despite the faulty system of appointment, the CECs have been conducting themselves well and we hope that they will behave well in future as well.  But hope can never be a strategy. There has to be an institutional mechanism. There has to be institutional check".

He said that nobody has questioned the collegium system for appointment for the CBI Director.  "If the Leader of Opposition is involved in this decision making, at least the opposition parties will not be able to raise their finger against the incumbent ECs. Therefore not only it will appear it will be a fair neutral system, at least a perception of independence will be there and that will boost the public confidence in the system", he said.

"If a Leader of Opposition was also signatory to my appointment, I would have felt much stronger, much more confident.  Not that I did not act without fairness. You know there was the Law Minister of the land belonging to the same party which appointed me. But we took action against him and two three other ministers. But that is our individual style of management. But everybody may not have the same attitude". 

Regarding the concern expressed by the Supreme Court about the short tenure enjoyed by the CECs over the past few years, Quraishi had a different perspective to offer. He said that since 1993, the Election Commission has been a multi-member body. So a person is appointed as the Election Commissioner first and the senior most among the Election Commissioners is appointed as the Chief Election Commissioner. Therefore, the cumulative tenure as the EC and the CEC must be taken into account. Also, at the age of 65 years, the person has to retire from the ECI. Generally, they will have a term of 5-6 years as EC and CEC combined, he pointed out.

Referring to his own case, Quraishi said that he was appointed as the Election Commissioner at the age of 59 years and for four years, he functioned as the EC and he got appointed as the CEC at the age of 63 on the basis of seniority, giving him a term of two years as the Chief. Thus, he had a total term of 6 years.

Election Commissioners should also have protection from removal

He pointed out that the Chief Election Commissioner has a protection from arbitrary removal by the Executive as the Constitution provides that the CEC can be removed only in the manner a judge of the Supreme Court is removed, which means only through an impeachment by the Parliament. This protection gives the CEC a degree of independence and autonomy. However, similar protection is not extended to the Election Commissioners.

"The same logic should extend to the other two Commissioners. It used to be a single member commission till 1993. This protection was available not to an individual but to the institution of the Election Commission headed by the CEC. Now it is a three-member commission. Obviously, the protection should extend to all three. Otherwise what happens is although, all three are equal in rank, pay and voting rights, the two Commissioners will consider themselves on probation because they can be removed very easily. So they can consider themselves vulnerable. They feel they are on probation so they may be trying to please the Government and they are not sure that they will be elevated to the CEC because this is also the discretion of the Government, although the Government has not yet violated it. But the Government can if it will feel like. Therefore these two things should be made very clear. That once appointed, even the Commissioners cannot be removed except through impeachment and their elevation to CEC will be automatic by seniority as happens in the case of the Chief Justice of India".

The interview can be watched here