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

Part II

*Hamza Khan

Editorial Note: This is the second part of the Blog titled “A Case for Confirmation Hearings in the Appointment of Election Commissioners: Revisiting the Constituent Assembly Debates”. The first part of the Blog discussed how Article 324 of the Indian Constitution, while establishing the Election Commission of India (ECI), deliberately left the appointment process to Parliament, reflecting the Constituent Assembly’s trust in future legislatures. It traced how this gap remained unaddressed until 2023, when a new law, prompted by a Supreme Court judgment, formalized the process—but with heavy executive dominance. It also revisited the drafting debates, highlighting how L.K. Saxena’s proposal for parliamentary confirmation was sidelined despite its potential to curb executive overreach and enhance transparency.

Reading Between the Lines: Why the Saxena Proposal was Negatived

Aside from the two reasons stated in the Assembly for opposing the proposal by L.K. Saxena, there appear to be two underlying reasons that were not expressly stated but formed the underlying reason behind the existing framework governing the appointment. First, a complete trust in the Union that they would not abuse the powers given to them, and second, a belief that the Constitution should only bind the future Parliaments to the extent necessary, and the future legislatures, directly elected under universal adult franchise, should be free to make policies for the effective governance of the country, to the widest extent possible. 

The fact that the Assembly placed enormous trust in the Union is evident from the other debate on draft Article 289, i.e., the debate around giving a centrally appointed Election Commission the power to conduct provincial elections. The members of the Assembly believed that provincial elections were being manipulated as the provincial governments were misusing their hold over the provisional election bodies. According to an overwhelming majority, the remedy was to vest the power of conducting provincial elections with a centrally appointed ECI. It never occurred to them that the Union government would be just as prone to manipulate the election as the provincial governments are. Hukam Singh thus remarked, 

“It has been assumed that the Centre will not be liable to corruption at any time. We are perhaps obsessed with the feeling that our present leaders, who are noble and responsible people and are at the helm of affairs now, will continue forever or that their successors will be as responsible as they are.”

Others stated that the fact that the highest constitutional authority, the President, will make the appointments ensures that they will be made in utmost good faith and only of the most deserving people. Hence, this faith in the Union, influenced by the fact that the same members of the Constituent Assembly were acting as the Parliament simultaneously, could have been why the Assembly did not feel the need to regulate the appointments as suggested by Saxena through a constitutional provision.

The abuse of this power by the Union came to the fore in the era of Indira Gandhi when judges were transferred for unfavourable decisions, and others were superseded for Chief Justiceship. At the same time, the Union started tinkering with the ECI, changing its composition and seeking to dilute the CEC’s power. Hence, Hukam Singh’s fears materialised decades after they were first expressed in the Assembly.

The second reason the Assembly did not restrict the Union’s power to make appointments to the ECI was the policy of incrementalism, i.e., transferring some of the decisional weight away from the present to the future and away from the Constitution to politics. By-law clauses are a classic constitutional incrementalist tool through which constitution-makers consciously choose not to bind their successors and explicitly delegate certain constitutional questions to future legislatures. By deciding not to decide, they reduce the decision costs and potential error costs at the time of framing the Constitution. This policy of leaving important decisions to the legislature can also be noted in the citizenship provisions.

The usage of incrementalism was evident from Ambedkar’s suggestion that for the time being, when an elected Parliament does not enact a law regulating the appointment to the ECI, the Constituent Assembly may enact an Instrument of Instructions providing some machinery that would be obligatory on the President to consult before making an appointment. This shows that the Assembly was not against the idea of putting in place safeguards in the appointment process, but did not want it to become a part of the Constitution which would bind the Parliament.

The subsequent events, however, indicate that while incrementalism could have been helpful in questions like the Uniform Civil Code (“UCC”), cow slaughter, and citizenship, it was a misstep to leave the appointment of the ECI to the Parliament without safeguards codified in the Constitution. This is because, as the Supreme Court later articulated, 

“Political parties undoubtedly would appear to betray a special interest in not being forthcoming with the law. The reasons are not far to seek. There is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation.”

Therefore, the Parliament did not make a law regulating appointments to the ECI, and the President, acting on the advice of the executive, continued to make appointments for 70 years until the Supreme Court stepped in and created a temporary arrangement to ensure the ECI’s freedom from executive influence. Even parties that had vehemently argued for a transparent procedure for appointment to the ECI when they sat on opposition benches, altered their stance when they came to the treasury benches and refused to act on their own petitions and suggestions. 

The Parliament subsequently enacted the law that was pending for 70 years, but in the absence of a binding principle in the Constitution regulating the appointment, the enacted law vested the power of appointment in a panel where the executive had a majority of 2:1, thereby defeating the purpose of the amended Article 324, which was to free the ECI from executive influence.

At the beginning of the discussion on the procedure of appointment, Kunzru, while advocating for making the discretion of the President subject to the law made by the Parliament, stated that if the procedure was not subjected to a law made by the Parliament, then 

“The Chief Election Commissioners will have to be appointed on the advice of the Prime Minister, and, if the Prime Minister suggests the appointment of a party-man the President will have no option but to accept the Prime Minister’s nominee, however unsuitable he may be on public grounds.” 

It is clear that subjecting the discretion of the executive to a law made by the Parliament failed to achieve the intended goal of separating the ECI from the executive. Rather, the law that the Parliament made gave complete and unilateral control over the appointments to the executive.

Confirmation Hearing by the Parliament: The Need for Revival

In the last 75 years, multiple high-level committees, including the 255th Law Commission, suggested a reform in the appointment process of the ECI. The unifying factor in these reforms is that they emphasized a selection panel that was not exclusively influenced by the executive and made the opposition a part of decision-making. The Goswami Committee and the 255th Law Commission of India suggested that the panel include the Prime Minister, the LoP, and the Chief Justice of India. This arrangement also found favor with the Supreme Court, which constituted a similar panel for nomination in the Anoop Baranwal case. Another Commission suggested a body consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, the Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha, and the Deputy Chairman of the Rajya Sabha.

While these broad-based panels may reduce the executive influence in nomination, they cannot be a substitute for a confirmation hearing by the Parliament. The confirmation hearings by the legislature have become increasingly common across many countries. In the USA, the nomination of the President for most executive and judicial posts, including nominations to the Federal Election Commission, is subject to confirmation by a simple majority of the Senate. The Chief Electoral Officer of “Elections Canada” is appointed by a House of Commons resolution. In South Africa, the nominated members of the Election Body are confirmed by the National Assembly. Similarly, in the UK, the nominated members of the Electoral Commission are placed for hearing before the House of Commons before their appointment.

The USA has the longest and most documented history of confirmation hearings by the Senate for appointments to high offices going back to 1792. Hence, this article will refer to the US experience in some detail. In the USA, the confirmation hearing at the Senate starts with an introduction of the nominees by the Chairman and their qualifications. The senators are then allowed to question the nominee on various aspects, including their qualifications, ideological inclinations, and knowledge of their role. These proceedings in the Senate are open to the public and receive widespread media coverage and public attention. Such hearings may extend to multiple days, after which the Senate votes to confirm or reject the nomination.

Subjecting the nominees to extensive questioning on both their qualifications and their policies, and televising such recordings compels the nominating authority, whoever that be, to ensure that only individuals who have a clean record, are qualified for the position, and who re uncontroversial in public opinion are nominated for such important positions. It has been noted that even when a single party held the President position and a majority in the Senate, they abstained from nominating party men or unqualified individuals out of fear of public scrutiny.

Conclusion

The process of appointment of the ECI has always been deeply contested. The opposition parties have often leveled charges that the executive appointments to the ECI are unfair and do not provide a level playing field for all the parties. The traditional response of various committees, commissions, and the Supreme Court has been to suggest different compositions for the nominating panel. This paper suggests that regardless of the nominating body, subjecting the nominations to confirmation by the Parliament can bring in much-desired transparency in the process, as proposed by L.K. Saxena.

Ambedkar’s arguments against Saxena’s proposal can no longer be sustained. Further, the framework adopted under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 leaves much to be desired. Hence, it is time to critically review the current framework and look for alternative mechanisms to ensure transparency and fairness in the appointment.

This should be done through a Constitutional Amendment of Article 324 that makes the nomination subject to confirmation by the Parliament. Doing so would ensure that the process of appointment and the profiles of the candidates to the position is subject to public scrutiny and is made a part of record. Furthermore, the requirement of confirmation by two-thirds majority would ensure that only such candidates who are not perceived as leaning to either political party are appointed to the position.

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

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