Context

A five-judge Constitution Bench of the Supreme Court is examining a bunch of petitions recommending reforms in the process of appointment of members of the Election Commission.

Electoral reforms and reluctant Governments

Long pending reforms: A list of over 20 reform proposals was compiled in 2004. More proposals were added to the list over time and are pending with government.
Ineffective model code of conduct: These range from strengthening the Commission’s inherent structure to handling the misuse of muscle and money power during elections, which violate the Model Code of Conduct.
Judicial intervention because of reluctant Government: It is hoped that the Bench will also examine electoral reforms suggested to governments by successive Election Commissions over the last two decades or so.

The Dinesh Goswami Committee in 1990: It is suggested that the Chief Election Commissioner be appointed by the President (read: executive) in consultation with the Chief Justice of India and the Leader of the Opposition (and in case the Leader of the Opposition was not available, then consultation be held with the leader the largest opposition group in the Lok Sabha).
Statutory backing for collegium led appointment: It said this process should have statutory backing. Importantly, it applied the same criteria to the appointments of Election Commissioners, along with consultation with the Chief Election Commissioner.
The National Commission to Review the Working of the Constitution: The commission under Justice M.N. Venkatachalam, said that the Chief Election Commissioner and other Election Commissioners should be appointed on the recommendation of a body comprising the Prime Minister, the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha.
The 255th Report of the Law Commission: Chaired by Justice A.P. Shah, said the appointment of all the Election Commissioners should be made by the President in consultation with a three-member collegium consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha), and the Chief Justice of India.

Conferred equal power on election commissioners: The T.N.Seshan case conferred equal powers on the Election Commissioners as those enjoyed by the Chief Election Commissioner (referring to the Chief Election Commissioner as primus inter pares, or first among equals).
Equal protection was not conferred: Supreme court offered majority power, whereby any two can overrule even the Chief Election Commissioner. Yet, it did not accord the Election Commissioners the same constitutional protection (of removal by impeachment) as is accorded to the Chief Election Commissioner.

Hesitancy to act: Without security of tenure, they may hesitate to act independently, which they otherwise might if they were truly secure.
Junior to chief election commission: In the absence of full constitutional security, an Election Commissioner could feel they must keep on the right side of the Chief Election Commissioner.
Remain loyal to government: They might also feel they should remain within the ambit favoured by the government.
Fear of non-elevation: An Election Commissioner can never be sure whether they will automatically be elevated to the top post because nowhere has elevation been statutorily decreed.

Same procedure for removal of judge: It is suggested measures to safeguard Election Commissioners from arbitrary removal, in a manner similar to what is accorded to the Chief Election Commissioner, who can only be removed by impeachment, which is by no means easy.
Appointment by collegium: While the Chief Election Commissioner should be appointed by a collegium, this must apply equally to the Election Commissioners.
Reform by constitutional amendments: The Election Commissioners must now equally be protected from arbitrary removal by a constitutional amendment that would ensure a removal process that currently applies only to the Chief Election Commissioner.

Reforms in election commission is absolutely necessary but manner of reforms is debatable. Judiciary’s role is not to reform the institution but to deliver the justice. This might be another case of judicial overreach in legislative domain any reform. Any reform in election commission has to come from legislature.

Mains Question

Q. What are the necessary reforms in Election commission of India? Why security of tenure is important for election commissioners?