Editorials/Opinions Analyses For UPSC 13 January 2022

Contents:

1. Act now, recast the selection process of the ECs
2. Talking to Russia

Act now, recast the selection process of the ECs

Context:

The Chief Election Commissioner (CEC) and his Election Commissioner colleagues ‘attending’ an ‘informal’ meeting with the Principal Secretary to the Prime Minister, late last year.

• This has brought renewed focus on the independence and the impartiality of the Election Commission of India (ECI)

Relevance:

GS Paper – 2: Constitutional Bodies, Transparency & Accountability

Dimensions of the Article:

1. What are the accusations?
2. Role of Parliament
3. The judiciary could act
4. What should be the nature of the ECI?
5. Way Forward

What are the accusations?

• The Election Commission of India is a constitutionally mandated body that should maintain its distance from the Executive, in perception and reality.
• Over the last seven years, the ECI has faced multiple accusations of favouring the ruling Party.
  • For instance, the Citizens’ Commission on Elections (CCE), chaired by the retired Supreme Court judge, Justice Madan B. Lokur, in its report titled “An Enquiry into India’s Election System”, has highlighted several instances of inaction on the part of the ECI while conducting the 2019 general election.
• ECI was also accused of its inaction for violations of electoral codes of conduct.
• Given that the ECI is the institutional keystone holding up the edifice of Indian democracy, we suggest that changes in the appointment process for Election Commissioners can strengthen the ECI’s independence, neutrality and transparency.
• The appointment of Election Commissioners falls within the purview of Article 324(2) of the Constitution, which establishes the institution.

Role of Parliament:

• Article 324 contains a ‘subject to’ clause which provides that both the number and tenure of the Election Commissioners shall be “subject to the provisions of any law made in that behalf by Parliament, be made by the President”.
• This ‘subject to’ clause was introduced, in the words of Dr. B.R. Ambedkar, to “prevent either a fool or knave or a person who is likely to be under the thumb of the Executive”.
• Apart from enacting a law in 1991, which was subsequently amended to enlarge the number of Election Commissioners from one to three, Parliament has so far not enacted any changes to the appointment process.

The judiciary could act:

• Three writ petitions are urging the Supreme Court to declare that the current practice of appointment of Election Commissioners by the Centre violates Articles 14, 324(2), and democracy as a basic feature of the Constitution.
• These petitions argue for an independent system for appointment of Election Commissioners, as recommended by previous Law Commission and various committee reports.
• Significant reports and Commissions:
  • In 1975, the Justice Tarkunde Committee recommended that Election Commissioners be appointed on the advice of a committee comprising the Prime Minister, the Lok Sabha Opposition Leader and the Chief Justice of India.
  • This was reiterated by the Dinesh Goswami Committee in 1990 and the Law Commission in 2015.
  • The Fourth Report (2007) of the Second Administrative Reforms Commission additionally recommended that the Law Minister and the Deputy Chairman of the Rajya Sabha be included in such a Collegium.

What should be the nature of the ECI?

• Rojer Mathew vs South Indian Bank Ltd case argues against the Executive being the sole appointer for a quasi-judicial body.
• The pending writ petitions, therefore, argue that the “Election Commission is not only responsible for conducting free and fair elections but it also renders a quasi-judicial function between the various political parties including the ruling government and other parties. 
• The Executive’s discretion: The Executive cannot be a sole participant in the appointment of members of Election Commission as it gives unfettered discretion to the ruling party to choose someone whose loyalty to it is ensured and thereby renders the selection process vulnerable to manipulation”.
• Hence, establishing a multi-institutional, bipartisan committee for the fair and transparent selection of Election Commissioners can enhance the perceived and actual independence of the ECI.
  • Such a procedure is already followed with regard to other constitutional and statutory authorities such as the Chief Information Commissioner, the Lokpal, the Central Vigilance Commissioner, and the Director of the Central Bureau of Investigation.
• The quasi-judicial nature of the ECI’s functions makes it especially important that the appointments process conform to the strictest democratic principles.
• The Executive’s role in the current appointment process has come under judicial scrutiny over its lack of transparency.
  • Anoop Baranwal vs Union of India, Ministry of Law and Justice Secretary has raised this very demand for a Collegium system for the ECI.
• A Bench comprising the then Chief Justice of India, J.S. Khehar and Justice D.Y. Chandrachud had also noted in 2017 that “The Election Commissioners supervise and hold elections across the Country, and this is the significance of their office, and their selection has to be made in the most transparent manner.”
  • The Bench referred to the mandate of Article 324(2) of the Constitution to state that, “it is expected from Parliament to make the law, but it has not been made.”

Way Forward:

• Parliament would do well to pre-empt judicial strictures by going ahead and formulating a law that establishes a multi-institutional, bipartisan Collegium to select Election Commissioners.
• Separation of powers is the gold standard for governments across the world.
• The ECI’s constitutional responsibilities require a fair and transparent appointment process that is beyond reproach, which will reaffirm our faith in this vital pillar of our polity.
• The existing veil over the appointment process of Election Commissioners potentially undermines the very structure on which our democratic aspirations rest.

Talking to Russia

Context:

The Geneva talks between the United States and Russia were inconclusive.

• The hurried talks were held between the two powers and they agreed to continue the negotiations to discuss both the North Atlantic Treaty Organization’s expansion and Russia’s troop mobilisation is itself a welcome step. 

Relevance:

GS Paper – 2: Bilateral Groupings & Agreements, Effect of Policies & Politics of Countries on India’s Interests

Dimensions of the Article:

1. Current Situation
2. Why there is a deadlock?
3. Cause of Conflict
4. Way forward

Current Situation:

• It was practically impossible for the former Cold War rivals to iron out their differences in the first round at a time when tensions are running high in Europe, especially over Ukraine. 
• Russia has also issued a host of demands to the West that sought to stop NATO’s further expansion into Eastern Europe and roll back the alliance’s military presence to 1990 levels. 

Why there is a deadlock?

• The U.S. has publicly said that it will not shut NATO’s door on potential future members.
• And nobody knows what Mr. Putin would do if the talks collapse.
• By forcing the U.S. to come to the table to discuss NATO’s expansion — an issue which Moscow has been complaining about for years — Mr. Putin has scored the first victory.
• But it would be naive of him to believe that the Russian demands would be accepted by the West without any resistance.
• So, the challenge for both sides is to find common ground.

Cause of Conflict:

• The source of Russia’s staunch opposition to NATO is its deep insecurity.
• After the disintegration of the Soviet Union, a substantially weakened Russian Federation saw NATO’s continued expansion into Eastern Europe as a violation of the post-Cold War consensus.
• Russia responded militarily in 2008 when Georgia was considering joining NATO, and in 2014, it took Crimea from Ukraine after the pro-Russian regime in Kiev was toppled by protests. 
• The West sees Russia as an aggressive, abrasive and destabilising giant that breathes down the neck of Europe.
• In hindsight, both NATO’s expansions and Russia’s military responses are driving instability in Eastern Europe. 

Way forward:

• Finding a solution to the crisis will not be easy.
• It depends on whether both sides are able to get out of their Cold War mentality and build mutual confidence in bilateral relations.
• For all practical purposes, Ukraine and Georgia, both faced with separatist conflicts, cannot join NATO in the foreseeable future. NATO could use this reality as a policy promise to calm Russian nerves.
• NATO could use this reality as a policy promise to calm Russian nerves.
• Russia is still battling with the economic costs of his Crimea annexation, which has left a wide chasm in Russia’s ties with Europe.
• Further aggression against Ukraine might serve his tactical interests, but could deal a deadly blow to any plan to bring the Russia-Europe ties back on track.
• A war is in nobody’s interests.
• Russia and the West should keep that in mind when they sit down for the next round of talks.