'Collegium, with some aberrations removed, is a very good idea'

'There is one negative thing which has happened very quietly. The position of the election commissioner has been downgraded.'

Former chief election commissioner Dr S Y Quraishi discusses with Prasanna D Zore/Rediff.com the pros and cons of the new bill tabled in the Rajya Sabha by the Narendra D Modi government that seeks to replace the Chief Justice of India in the selection committee that appoints the chief election commissioner with a Union Cabinet minister.

What do you make of the government tabling a bill in the Rajya Sabha that envisages the prime minister and a Union Cabinet minister -- and the Leader of the Opposition -- as members of the selection committee that chooses the chief election commissioner?

It's a mixed bag. There are certain positive features. There are certain negative features.

First of all, the Supreme Court's unanimous order was that there should be a collegium. So that has been complied with.

The only thing is that they had proposed a different composition (the three members then included the prime minister, the Leader of the Opposition and the Chief Justice of India).

And (in the bill that has been tabled in the Rajya Sabha for appointment of CECs) instead of the Chief Justice, they have brought in another Union (Cabinet) minister appointed by the prime minister.

That surely puts a question mark on the fairness of this (selection committee) because it is two to one. And the Leader of the Opposition will always be marginalised.

There is another clause which puts a nail in the (coffin of) neutrality: That nobody can find fault or defect in the composition (of this selection committee). So that will not invalidate (the appointment of the CEC made by this selection committee).

Even if the Leader of Opposition is not present, they (the remaining two members of the selection committee, that is, the prime minister and the Cabinet minister) can still go ahead and do the meetings.

So there are attempts to make the LoP totally ineffective, if not irrelevant.

There are two-three new things which are good. For instance, there was no qualification prescribed for the appointment of election commissioners earlier. But now it says that a (CEC should be a) serving secretary or a former secretary of relevant experience and integrity and who has experience of elections.

Prescribing qualification is a good thing because otherwise they could have brought in anybody from the street and nobody would have faulted because there is no law.

The other good thing is they have created a shortlisting committee headed by the Cabinet Secretary with two other senior secretaries, who will pick up five names (for appointment to the position of CEC) from out of the eligible people.

But at the same time, this good clause is being neutralised and the (proposed) law (the bill) says that the (selection) committee (that shortlists the candidates for the position of CEC) can go even beyond these five. So that makes mockery of the shortlisting committee.

Now, five members is a large number out of the very eligible candidates. And only secretary to the Government of India is eligible but to become secretary to the Government of India, you require a lifetime of experience.

Only 5 per cent of all the recruited people make it to the top. And if from the top, if five people are selected surely one suitable candidate will be available to say that the committee can go beyond those five.

So why are you making a joke of this five member committee and perhaps that will become the norm? But absolutely that is not acceptable and surely the Cabinet Secretary will not put up a name which will be a red rag to the bull kind of a situation, somebody who would be offensive to the PM.

In fact, most likely the Cabinet Secretary will even sound the PM with those five names (who would make the shortlist for appointment as the CEC). In any case, that may happen or not, although practically I know that that is what will happen.

The three member committee will pick up five very good people and for the LoP and the two members to agree to find some suitable candidates should be no problem at all.

Just as you say that the (selection) committee can select anybody from outside, can the LoP bring in somebody from outside? No.

Choosing from the five is a good option but the proviso that it could be neutralized is not good.

Do you think this law, after it is enacted, could head to the Supreme Court for interpretation of its Constitutionality? Does it not make a blatant mockery of the selection process?
There is no neutrality, there's no fairness.
What happens to the elections? Can free and fair elections be conducted by a CEC who is appointed by two executives

That, of course, will be carrying it too far because for the last 70 years, all election commissioners have been appointed by not two executives, but one executive, the prime minister. And all of them, except for a handful, have acquitted themselves very well.

We can't carry it too far.

Whether it will go to court, most probably it will, because I think people will challenge the exclusion of the Chief Justice. The apex court may or may not make it an issue.

Optically, that (having the CJI in the selection committee) was a good idea. Whereas practically, whether CJI's presence in the collegium was making a difference or not, that is something that many people ask. What they quote is the successive appointments of directors of the CBI.

In fact one CBI director appointed through this collegium process where the CJI was present had so many complaints against him (the CBI director). He met a criminal at his house 183 times in a year, according to IB (the Intelligence Bureau) report.

How was he appointed? With the concurrence of the CJI.

Therefore, some people say that CJI neither has that kind of time nor does he have personal knowledge of (bureaucrats); the LoP and prime minister know their officers, they are secretaries to the Government of India. The CJI will not know them.

The CJI will only see the record and record of everyone will be good; unless you had a good record, you cannot become the secretary. Now, how one proves after coming on the chair (selection is done) is a different matter.

All the people appointed have similar records, integrity certificate, brilliant experience, everything. Some showed backbone, some did not. So that's a question of individual conscience and individual backbone

Does the exclusion of the Chief Justice of India give a sense that the government is afraid of having the CJI who is chosen by a collegium of judges and not by the government?

I think it (having the CJI on the selection committee) is only optical than anything else. The Chief Justice is working for many other functions. We have not come across any clash of interest or conflict (between the executive and the CJI) in that thing (selection of many other officers to statutory bodies) and very harmoniously the same collegium with the Chief Justice in it have been taking decisions (to appoint) CIC (chief information commissioner), CVC (chief vigilance commissioner), director CBI... all those appointments have taken place (harmoniously).

It's a different matter that appointments of director CBI have been questioned later. At the time when the committee met (to appoint CBI director) on the file, it was all good.

The best thing about this bill, which has not been discussed and debated, is we have been demanding that out of the three (election) commissioners -- the two (ECs), one CEC -- the latter was protected from removal except through impeachment. The other two could be removed very easily.

Therefore, they (the two ECs) felt like they are on probation and they were always looking over their shoulder whether the government is happy, will they elevate me or not? Therefore they could have been manipulated.

The two (ECs) together could have been manipulated to control a CEC by over-ruling him (the CEC) every day.

We have been asking for protection granted by the Constitution to the CEC, which was for the institution and not for an individual. That institution was one man initially and from 1991 it became a three member institution.

Therefore, equal protection to all three is a brilliant idea. It is a good thing that the government has accepted -- a long pending demand of everybody.

In your personal as well as professional capacity, you being a former CEC, what could be an ideal process of selecting the chief election commissioner?

This collegium (proposed in the bill), with some aberrations removed, is a very good idea because optically also when the LoP has put a stamp (on the appointment of the CEC then it makes it fair).

In fact, I was once asked this question by (the journalist) Karan Thapar in an interview when I was the serving CEC. I said collegium system would be definitely better because although I'm extremely fair and everybody knows that I'm fair, but an occasional person who might say that 'you are appointed by such government', you'll be so hurt.

So he said, 'Would you have felt better if Sushma Swaraj (then the LoP) had also signed?' I said, 'Definitely, because perceptions are very important and if a leader of the Opposition is signatory to an appointment and that officer later on proves to be not worthy at least then, no political party can raise finger because the LoP was a party to the selection process.'

Therefore, for the public perception and perception of neutrality and credibility, a collegium is a good idea, but with the aberration which I mentioned removed.

There is one negative thing which has happened very quietly. The position of the election commissioner has been downgraded.

In 1993, through the Act, they were all equated with the Supreme Court judges. Now they have been downgraded to Cabinet Secretary.

Although salary of the Cabinet Secretary and the Supreme Court judge is the same, but in terms of status, in terms of precedence, optically, the stature of a Supreme Court judge is higher. So downgrading it to a rank of a bureaucrat is a bad idea.

I don't know whether it has been done deliberately or this has just happened by an oversight. And I only hope that it will be corrected.