The composition of the Selection Committee goes against the proposals so far mooted by different committees and commentators. The suggestions of the Tarkunde Committee (1975), Dinesh Goswami Committee (1990), Venkatachaliah Commission (2002), Second Administrative Reforms Commission (2007) and 255th Report of the Law Commission (2015) may differ in numbers and nature of members, but their concurrent crux is the minority position of the executive in the envisaged selection committee or Collegium.

Moreover, the axiom as well as universal practice across liberal democracies is for multi member, nonpartisan and crosssectional collegiums, or an elaborate process in selecting members of the electoral management bodies. The focus of the commentaries on the Act is almost exclusively confined to the partisan character of the SC and the critiques gloss over the equally critical Search Committee, which is composed of two Secretaries and the Minister of Law and Justice at the helm. The Search Committee is tasked with preparing a panel of five candidates and submitting it to the SC. Intrinsically, the Search Committee members are the foot soldiers of the ruling executive. The Secretaries not only work under the government, but they also know the consequences if they dare not do the bidding of the Minister.

That such tokenism is not hypothetical is corroborated by the curious appointment of Arun Goel as election commissioner. For Goel the entire process ~ approval of the post, panel preparation, the Prime Minister’s recommendation and notification from the President ~ was completed on 18 November 2022. Intriguingly, Goel’s application for and sanction of Voluntary Retirement had been over within the same day, waiving the precondition of a threemonth period.

The Law Minister after accessing the database of serving and retired officers prepared a panel of four candidates ~ three retired during 2020 and one serving Secretary and younger in age. When asked by the Supreme Court whether efforts were made to find out any officer who would have served a full term of six years as mandated by the law, the government replied that there was a dearth of such officers. But the petitioner contended that there were about 160 Officers belonging to the same 1985 batch of Goel and some younger Officers could have served the full tenure.

In defence of Goel’s selection, the insistence was that Goel would have little over a five-year tenure in the ECI in contrast to less than three years for the others. The “tearing hurry and superfast” selection and appointment of Goel is accounted for by the pending writ petition in the Supreme Court that sought direction to make an appointment to the ECI member following the recommendation of one independent, neutral and non-partisan committee. The case of Arun Goel vindicates the crucial importance of a sentinel like the Search Committee.

When the feed can be controlled or tweaked to push through the preferred one, the role of the SC turns to formalism. Considering the propensity of the ruling governments, one bipartisan and transparent procedure could be the provision for one joint parliamentary committee, to be tasked to prepare the panel after accessing the database of officers, and forwarding it to the SC After all, it is incumbent to pull the plug ab initio. Now only secretaries to the government are qualified to be the members of the commission. This provision formalises, if not truncates, the domain. For long, the executive used to pick their favourite IAS officers ~ rarely from elsewhere like Sushil Chandra from the Indian Revenue Service.

Evidently, the eligibility conforms to the job requirements. Yet, one is not sure how the secretaries, having had long and intimate associations with government departments, can remain unbending under the discreet influences of the executive functionaries. After all, TN Seshan and R V S Peri Sastri are out of the common in the ECI.

The proviso that empowers the SC to consider any other candidate apart from those empaneled ~ one usual legal practice to keep the doorway open ~ is no less superfluous as and when the two committees are on the same page. The overarching preponderance of the ruling executive in both the search and selection committees paves the assured way for the preferred candidate to be the appointee to the ECI. When the drawing of the panel itself results in fait accompli, the entire process of appointment becomes a foregone eventuality or a ritual as to who will ultimately be appointed. Yet another enigma relates to the similar scheme of appointment for both the CEC and EC. Since the tenure of the CEC MS Gill, the standard practice has been to elevate the senor-most-serving EC to the CEC.

And the ECI has guarded the tradition zealously. When the Vajpayee government reportedly decided in January 2004 to appoint TR Prasad, the Cabinet Secretary, as the next CEC by superseding the senior incumbent, the ECI members threatened to resign en masse. Consequently, the government had to backtrack and appoint TR Krishnamurty as the CEC. The Law Commission Report titled Electoral Reforms (2015) lent support to the course and prescribed that the senior EC ought to be instated as the CEC except for reasons to be recorded in writing if he is found unfit.

Does the new method intend to scrap the prevailing practice and seek to add new draftees by searching, scrutinising and preparing a panel of eligible candidates? Concerning the composition and working of the ECI, there are many fuzzy areas, some of which have already engulfed the institution. Clarity on such opacities is a prerequisite for reinforcing the institutional efficacy and integrity of the ECI. Unfortunately, the Act skips all the critical aspects and perpetuates the so-called old regime of opaqueness.

The obscurities that demand legal delineation, inter alia, include: what will be the total number of ECs, can the number be changed from time to time and where to incorporate the numbers of ECs? What is the relative status of EC, the relation between EC and CEC, or how can ECs be removed without destabilising the inhouse relationship? When and how can the CEC recommend the removal of ECs and should such a recommendation be obligatory in nature?

If the CEC recommendation is the final nail in the coffin, does it not contradict other provisions of the Act (like similar qualification, method of appointment, tenure, salary, protection from civil and criminal proceedings)? Can the CEC seek explanation from other commissioners about their conduct and what consequences it would have if such a directive was not complied with, or was found unsatisfactory?

Does not the majority decision in the conduct of the ECI business impinge on the independence of the CEC? Most of the vagueness stems from the constitutional provisions themselves and the imperviousness of the parliamentary laws perpetuates those. Article 324 of the constitution conceives the ECI primarily as a single-member institution and the subsequent elucidation follows. The Article makes passing references to the plurality to be dealt with by the successive laws.

Thus, the imbroglios revolve mainly around the incongruity between the single and multi member ECI. Since October 1993, plurality in the ECI has come to stay, and any tinkering with it is unlikely and, if attempted, would be a politically risky venture. Given the entrenched nature of the multi member election commission, it is incumbent to recast the constitutional and statutory provisions by incorporating necessary clarifications and reinforcements concerning the incompatible and obscure areas.

(The writer is former Associate Professor of Political Science, Tufanganj College, Cooch Behar)