A Case for Confirmation Hearings in the Appointment of Election Commissioners: Revisiting the Constituent Assembly Debates (Part-I)

Part-I

*Hamza Khan

Introduction

In 1950, the Indian Constitution was one of the few Constitutions that elaborately laid down provisions regarding an autonomous body for conducting elections, named the Election Commission of India (“ECI”). Part XV of the Constitution in 6 Articles codifies various aspects concerning the elections. However, there is a glaring omission in these provisions. The Constitution is silent on the process of selection and appointment of the Election Commissioners and leaves the same entirely to the Parliament. This was not the result of an oversight but a deliberate decision of the Assembly, trusting the future legislature that it would make a suitable law ensuring an independent ECI.

From 1950 to 2023, the prerogative of appointing the ECI remained exclusively with the President acting on the aid and advice of the executive, and no law was passed by the Parliament to regulate the same. It was only in 2023 after a judgment of the Supreme Court that the Parliament passed a law codifying the process of appointment. The Act authorized a panel comprising the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition (“LoP”) to make the appointment to the ECI by majority vote. Unsurprisingly, the first appointment under the new law was marred by controversies. With a majority of 2:1, the government overpowered the LoP and unilaterally appointed its desired candidates to the ECI.

Through this paper, the author seeks to return to the Constituent Assembly and resurrect an amendment proposed by L.K. Saxena to bring more transparency to the appointment of the ECI and dilute the extent of executive control over such appointments.

The article proceeds as follows: Part II studies the history of drafting Article 324 of the Constitution and the debates around it. Part III focuses on the amendment proposed by L.K. Saxena and his arguments in favour of it. Part IV discusses the stated reason as to why Dr. Ambedkar opposed such an amendment. Part V attempts to read between the lines to determine  why the amendment did not find favour with the Assembly. Part VI argues for the benefits of confirmation hearings relying on global best practices and academic work.

The Debates Around Draft Article 289

Article 324, as it stands in the Constitution, was presented as draft Article 289. This Article was drafted by the Fundamental Rights Subcommittee, discussed subsequently by the Minorities Subcommittee, passed to the Advisory Committee, and finally made its way to the Constituent Assembly on June 15, 1949. Throughout, no suggestion was made to regulate or codify the process of appointment of the Commissioners.

When the debate on draft Article 289 started in the Assembly, Ambedkar reiterated that for elections to be free, it was of the utmost importance that the election machinery be free from any interference from the executive. This principle was echoed in many speeches, with the notable exception of K.M. Munshi, who argued that the ECI should be subordinate to the executive to ensure harmony in governance.

Although the principle of independence from the executive found favour with an overwhelming majority of the Assembly, the members did not discuss how executive influence could be limited during the process of appointing the Commissioners. The discussion on elections prominently revolved around whether the Central Commission should be conducting provincial elections or if these should be left to Provincial Commissions. Amid these heated discussions, the provision on the process of appointment of the ECI received little attention. Therefore, “a headache provision” according to Ambedkar, i.e. the procedure of the appointment of the ECI, was passed largely unnoticed and unopposed.

Notably, the entire discussion in the Constituent Assembly on Elections took less than two days. It started on June 15, 1949, and the Assembly moved to other provisions before the session was adjourned on June 16, 1949.

The Proposal by L.K. Saxena: Subjecting the Appointment to Parliamentary Approval

Prof. Shibban Lal Saxena argued that if the executive were free to appoint a rubber stamp  to the post, then no provision relating to the security of tenure or conditions of service could safeguard the independence and integrity of the ECI. He was hinting at the phenomenon of loyalty to the appointer and reciprocity of favours - a phenomenon that the Supreme Court acknowledged and recognized in the Supreme Court Advocates-on-Record Association v. Union of India (2015) after decades. The Court articulated it in these words, 

“The reciprocity norm envisages that if someone does something beneficial for another, the recipient would feel an obligation to reciprocate... There is sufficient evidence to establish that favors do generate feelings of obligation and the desire to reciprocate.”

Hence, the mere fact that the executive had a conclusive say in the appointment of the ECI could render all other safeguards of impartiality of the ECI moot and insignificant. 

Saxena suggested that the appointment to the ECI be made subject to confirmation by a two-thirds majority in a joint session of both the Houses of Parliament. This would achieve two goals. Firstly, the requirement of the two-thirds majority would mean that more often than not, the executive will require support from other parties, thereby diluting the say it has in the appointment. Secondly, such a procedure will make the appointment a part of publicly recorded legislative proceedings, forcing even the most powerful government to not appoint candidates with doubtful credentials or clear political alignment.

Only two speakers responded to this suggestion: Pandit Kunzru and Dr. B.R. Ambedkar. While Kunzru agreed that the appointment must be independent of executive influence, he suggested that the Parliament may be authorised to lay down the specific law regulating the appointment. Ambedkar, too, acknowledged that the other safeguards, such as protection from termination, would not ensure independence in the absence of a mechanism that prevents the executive from appointing a rubber stamp to the post. However, he concurred with Kunzru that allowing the Parliament to make law regarding the appointment of the ECI would be sufficient to ensure transparency and impartiality in appointments.

Dr. Ambedkar’s  Reasons for Opposing the Saxena Proposal

Ambedkar gave two reasons for his disagreement with the proposal of L.K. Saxena. He argued that, first, the Parliament may not be in session at the time of appointment, and second, parliamentary approval may introduce political considerations in the appointment. Saxena did not have an opportunity to respond to these issues raised by Ambedkar, and the House returned to discuss other provisions.

In hindsight, these two concerns do not hold much water. Firstly, the regular vacancy in the ECI caused by retirement can be anticipated in advance; hence, the Parliament may, before such retirement, ratify the appointment of the successor if the retirement were to happen at a time when the House is not scheduled to be in session. In extraordinary circumstances where an Election Commissioner dies or resigns when the House is not in session, the President may  call the House for a special session. Since the ECI has become a body with three permanent members, even if there is some gap between the vacancy arising and the appointment of a successor, the other members of the ECI may run the elections until the Parliament confirms such appointment.

Secondly, it is undisputed that a confirmation proceeding in the Parliament would have introduced political consideration in the process. However, to believe that in the absence of such parliamentary confirmation, the appointment happens in complete isolation from politics would be misplaced. The appointment of two Commissioners by former Prime Minister Indira Gandhi in 1993 to dilute the powers of the then Chief Election Commissioner (“CEC”), T.N. Sheshan was arguably informed by political considerations. Seshan openly argued before the Supreme Court that by appointing two more commissioners and giving them equal voting power to that of the CEC, the government wanted to 

“…sideline the CEC and to erode his authority so that the ruling party at the center could extract favorable orders by using the services of the newly appointed ECs.”

Therefore, the appointments to the ECI were never free of political considerations and subjecting them to ratification in the Parliament would only bring these political considerations to the table and add transparency to the process.

Having understood that the appointment to Election bodies can never be politically insulated, many electoral democracies, for instance, the United Kingdom, Pakistan, Sri Lanka, and South Africa have made the appointments openly bipartisan. Doing so would ensure that political considerations of both the government and the opposition have a role to play, thereby ensuring a level playing field.

It is hard to believe that Ambedkar or the Assembly were ignorant of the response to the two concerns raised against Saxena’s proposal. Therefore, we must find other unstated reasons why the Assembly accepted Kunzru’s amendment to leave the regulation of appointment to Parliament over the suggestion of L.K. Saxena.

*Hamza Khan is a fourth year law student at NALSAR University of Law, Hyderabad.

Editorial Note: Readers may find the second part of the Blog here. It discusses why L.K. Saxena’s proposal was rejected and further delves into how confirmation hearings, as practiced in global democracies, can serve as a vital check on executive dominance and help restore the independence of the Election Commission of India.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog