Relevance: GS 2, Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

Key phrases: Independence, Transparent, Model Code of Conduct, Conflict with Law, Autonomy, Policy Directives

Why in News?

• Recently PMO addressed its communication to convening the meeting to the cabinet secretary, law secretary and secretary, legislative department.
• Secretary, legislative department (SLD) who “thought it appropriate” to “invite officials of the Election Commission to this meeting”.
• Meeting was convened by the Prime Minister’s Office (PMO) on the common electoral roll.
• This letter written by the Law Ministry to the Election Commission (EC) created debates regarding India’s institutional structure and its traditions and conventions.

ELECTION COMMISSION

• Election Commission is a permanent and independent body.
• The formation of EC is prescribed by article 324 of the constitution.
• It is common to both central and state governments.

• The elections to parliament, state legislatures, the office of president, and vice president are looked after by EC.

• EC consists of a chief election commissioner and other election commissioners. President fixes the number of election commissioners.
• The appointment of the chief election commissioner as well as the other election commissioners is made by the president.

ECI Issues:

• Non Transparent Selection Procedure: One of the major institutional drawbacks is non-transparency in the election of CEC and the other two commissioners and is based on the choice of presiding government.
• Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. Terms of the members of EC are not specified. They are not debarred from future appointments after retiring or resigning. Election commissioners aren’t constitutionally protected with security of tenure.
• Undefined Scope of Powers: Besides the MCC, the ECI issues from time to time directions, instructions, and clarifications on a host of issues that crop up in the course of an election.
  • The code does not say what the ECI can do; it contains only guidelines for the candidates, political parties, and the governments.
  • Thus, there exists a considerable amount of confusion about the extent and nature of the powers which are available to the ECI in enforcing the code as well as its other decisions in relation to an election.
• No Legal Backing of MCC: MCC is framed on the basis of a consensus among political parties, it has not been given any legal backing.
  • However, it does not have statutory value, and it is enforced only by the moral and constitutional authority of the EC.
• Conflict with the Law: According to the MCC, ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government.
  • However, Section 123 (2)(b) of the Representation of the People Act, 1951 says that the declaration of a public policy or the exercise of a legal right will not be regarded as interfering with the free exercise of the electoral right.
• Lack of Enforceability: The EC does not have the power to disqualify candidates who commit electoral malpractices. At best, it may direct the registration of a case.
  • That is why, in the 2019 general election, ECI admitted to the Supreme Court that it was “toothless”, and did not have enough powers to deal with inflammatory or divisive speeches in the election campaign.

What Needs to be Done:

• Selection and Removal: Attracting right people to man independent institutions is most crucial. Removal should only be possible if found guilty in an inquiry.
• Non Interference: The historical experience of the ages shows that all political power is inherently expansive. They use notions such as “committed bureaucracy and judiciary” and stick and carrot approach. The political class should show respect for independent institutions.
• Financial Autonomy: Functional independence can effectively be delivered only when financial autonomy is ensured. In the absence of the latter, the so-called independent institutions will inevitably be subjugated to the will of the controller of the budget.
• Staffing and Outsourcing: Empowering institutions to appoint sufficient and capable staff is also equally important. They should be allowed to appoint consultants through following transparent process.
• Independent Secretariat: The dependence on DOPT, Law Ministry and Home ministry must be reduced and the ECI should have an independent secretariat for itself.
• Regulation Framing: To conduct their business independent bodies should be allowed to frame regulations within the broad policy directives issued by the government. Such regulations can be notified with having a prior approval from the government. This should replace the practice of government framing the regulations for these institutions.
• Defining ‘Policy Directives’: The ambiguity should end. It should not be left to the sole discretion of the government to define what constitutes the policy directive. Gateways of ‘policy directive’ should be spelt out clearly in advance.
• Vigilance: The commission needs to be more vigilant and watchful against the collusion at the lower level of civil and police bureaucracy in favor of the ruling party of the day.
• Legal Support: There is a need to provide more legal support to the commission’s mandate and the processes that support that mandate.

Way Forward

• The Tarkunde Committee on Electoral reform (1975) and Goswami committees on Electoral reforms (1990) recommended the selection of a commissioner rather than an appointment based on the discretion of the President.
• The 2nd ARC report recommended for the selection panel headed by the Prime Minister with the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha as members should make recommendations for the consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners.
• Use of VVPAT and Vote Totalizer machine shall be used to protect voters from harassment by political parties.
• Issues related to malfunctions and tampering of EVM should be settled by creating all party panels and International experts. Introducing M3 type of EVMs which are more secure.

Mains Question:

Q. Election Commission has been working as a watchdog of the elections in India. In light of the above statement discuss the issues under which ECI is reeling under and what needs to be done to make it an independent watchdog of Indian democracy?

Sources: Deccan Herald