Constitution Depends on People Who Rule

Benchmarks for ECs’ appointments 

• The way India’s constitutional and political structures have evolved over the years seems to have made elections almost a mechanistic and ritualistic exercise. The reason behind this is the setting up and functioning of the Election Commission of India (ECI). This has come into public discourse because of the hearings in the Supreme Court on the appointment of Election Commissioners (ECs). 
• While many issues related to the ECI have been discussed in court hearings and outside, a deeper look at the ECI may be useful, given its role in the preservation of democracy in the country.

Working on a constitution 

• Article 324 of the Constitution is the fountainhead that creates the ECI. This recalls the larger issue of the working of the Constitution. For this, it is worth recalling what two stalwarts of Constitution­making (the President of the Constituent Assembly (CA) and the Chairman of the Drafting Committee for the Constitution) said in their final speeches in the CA when the Constitution was finally adopted.
• While commending the adoption of the Constitution to the CA on November 25, 1949, Dr B.R. Ambedkar said, “However good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution.”
• The next day, on November 26, 1949, almost echoing Dr Ambedkar’s words, Dr Rajendra Prasad said, “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it...

Constitution depends on people who rule

• If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. 
• A constitution, like a machine, is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them.”
• If we take the above­mentioned views of the two luminaries as a guide for choosing who should be assigned the task of ensuring that the roots of democracy are kept appropriately watered and nourished, the answer is Election Commissioners (ECs). 
• All the arguments and proposals mentioned during the court hearings will, obviously, be an improvement over the existing system of appointment of ECs but if we want ECs to match the qualities stated by Dr Ambedkar and Dr Prasad, then we need to go beyond how Article 324 of the Constitution and the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, have been operationalised so far.

Weakness in the system of appointing ECs 

• One major weakness in the system(s) of appointments of the ECs proposed so far is that they all perpetuate the bureaucratisation of the ECI, which is not even hinted at in the Constitution anywhere. 
• Two visible manifestations of this are the so­called elevation of ECs to Chief Election Commissioner (CEC), and the tenures of ECs and CEC. The elevation is a clear violation of the principle of primus inter pares.
• The Monopolisation of the positions of ECs and CEC by the administrative services is too obvious to need highlighting. So, how do we find persons who will come close to the expectation of Dr Ambedkar and Dr Prasad? For this, we need to go outside the existing frameworks.

Need bold actions

• Marginal improvements are not going to be enough. Bold actions are called for.  For this, the following process is proposed. An existing committee of Parliament or a new committee formed for this purpose should propose the qualifications and requirements for persons to be appointed as ECs/CEC. 
• The committee's proposals should be put to Parliament and should be considered approved only if they are approved by a two­thirds majority of the members of Parliament present and voting.
• Once Parliament has approved the qualifications and requirements, the same committee should be entrusted with the task of searching for and selecting individuals proposed to be appointed as ECs/CEC.
• The committee should invite nominations and applications of individuals appropriate for or interested in being appointed as ECs/CEC.
• The committee should send its recommendations to Parliament for consideration. Recommendations of the committee should be considered approved by Parliament only if approved by a two­thirds majority of the members of Parliament present and voting. 
• Once Parliament approves the recommendations, they should be sent to the President for approval of the appointments. Once appointed, such persons should stay in their positions for six years or the age of 75 years, whichever is earlier. Persons above the age of 69 years should not be appointed.
• Obviously, the above will be seen to be a very cumbersome process, particularly given that Parliament is dysfunctional today. Nonetheless, if democracy in its real sense is to be preserved in the country, the importance of the ECI must be recognised and accepted.