This election season, the election commission gained a lot of popularity and doubts have emerged over its credibility and ability to counter model code of conduct (MCC) violations, especially by the ruling party. It was accused of being biased for giving clean chits to the PM’s speeches. Experts also criticized the ECI of being ineffective in ensuring free and fair elections. Overall, the ECI proved to be at its lowest point in this election. Now, I would like to point out some root defects in the constitutional and legal framework of the ECI that need to be done away with to ensure its strength and to preserve democracy.
Election commissioners are appointed by the president who is bound by the advice of the government. This means the government has the discretion to nominate anyone for the post which could result in favouritism. Once appointed, commissioners have a tendency to favour the government in their decisions.
Many important bodies such as the human rights commission and information commission are appointed by a special committee consisting of the PM, speaker, opposition leader, and cabinet ministers which gives these bodies credibility. A similar mechanism should be applied to the appointment of members to the election commission.
Higher officials like the comptroller auditor general (CAG), and members of UPSC, etc. are barred from any reappointment under government services after their tenure to avoid any conflict of interest in their work. But the constitution does not ban election commissioners from holding a government post after their tenure. It means commissioners will have the tendency to favour the government to get lucrative posts in the future. Thus, election commissioners should be barred from holding government posts to ensure their neutrality in decisions.
The Consolidated Fund of India (CFI) is a public fund which includes whatever money the government gets from taxes and other sources. The government takes permission from parliament in every budget session to spend money from the CFI. But expenses of constitutional institutions like UPSC, CAG, supreme court, etc. are fixed and met through the CFI without requiring permission from parliament. This is done in order to make these institutions financially independent from the government and parliament.
But, the budget of the election commission, despite being a constitutional body, is decided by parliament which generally includes a majority of MPs from the ruling party. This means the ECI depends on the government for its finances which makes it vulnerable. So, like other bodies, the ECI should also get financial independence.
The ECI is only a 3 member body consisting of a chief election commissioner and 2 commissioners. Every decision is taken by majority vote among the 3 members. Such a small body may be easily controlled by the government without any dissent among members. In the 2019 election campaign, Ashok Lavasa too expressed his dissent over clean chits given to prime minister’s speeches but he could not counter the decision as it was voted in by a majority of 2-1.
So, there is a need to have more members in the commission to ensure unbiased and inclusive decisions with consideration of all aspects irrespective of party politics.
Another issue is the lack of a defined mechanism to enforce the model code of conduct. We have seen in the recent elections that many complaints in relation to the model code of conduct(MCC) violation could not be heard on time and leaders escaped from any strict punishment.
So, the ECI should take steps to design a better method to hear every complaint in a fair, transparent and time-bound manner. It can be done by having multiple committees to hear complaints and dispose of them on time.
These are the technical issues in the structure of the election commission (EC) that stop it from performing its mandate as given in article 324 of the constitution. We have had famous examples like TN Sheshan who showed their will to work and used constitutional powers of ECI to ensure fair elections. So, off course, it is the will of commissioners to do their work honestly which is of paramount importance.