Constitutional Posts and their appointments

2014 election is probably the most heated election ever. The sheer energy of Narendra Modi and dramatic oratory skills has mesmerized people and sent them into a trance state before hitting the polling booths. Most exit polls are confirming a Modi government at center. In this sort of election "war", although there were several villains like Rahul gandhi, Mulayam, Mamata and Mayawati, one unexpected "trump card" type villain popped up: Election Commission.

Whereas reforms are required in the manner elections are carried out, voter lists are maintained, poll booths are managed, EVMs are secured etc. are important issues, a curious case of "managing appointment" of election commissioners has also come to light. A wikileaks document and subsequent analysis showed a quid-pro-quo between congress and election commissioners VS Sampath and Brahma. Both had questionable record during coal block allocations (part of coalgate scam) and were denied access to CBI for questioning by Congress because they held "constitutional posts".

Constitutional Post


So what exactly is a "constitutional post"? Our constitution authors visioned certain institutions without which democracy and governance can't be sustained. These are called constitutional posts(held by a person) and bodies(group of people). Election commission is a constitutional body while election commissioners are constitutional posts.

For our analysis, we can segregate such entities by their political and apolitical nature. Prime minister, Chief ministers and their council of ministers, Speakers of lok sabha and Vidhan sabha are political positions: they are directly elected by people. Their appointments are not our concern because people are supreme and let them choose as they like. Chief justice of India, Supreme court judges and Chief justices of high courts are also constitutional posts. SC is a constitutional body. They are non political in nature, however, as talks about Judicial appointments commission are already going on for their appointments, let us ignore them too.

It gets tricky for the rest. Take example of President. Should a president be like Pranab Mukherjee, who has been with congress for all his life (over 4 decades), implicated in emergency activities during 1975-1977 and who always kept an open fighting line with opposition specially with BJP? Is people of India convinced that a person with such a profile will be "honest" while discharging his duties with Modi from BJP, and not show partisan behavior in favor of soon going to be in opposition: congress? Let us also look at flip side. Given that Modi has enough support both in Lok sabha, Rajya sabha and states, if he installs LK Advani as President, will he be perceived as non-partisan president irrespective of which party forms govt. in 2019? These questions are not only legitimate but also of constitutional importance, because the health of democracy lies on these pillars and which congress has weakened for its greed and power in the last six decades.

Trivia: in last four decades the only non-political appointment for post of President was done by Atal Bihari Vajpayee led BJP: Adbul Kalam.

Few of the important Non-political Constitutional Posts are Chief Election Commissioner (CEC), Attorney General of India, Comptroller and Auditor General of India (CAG), President, Vice-President and Governors. Besides these, there are several constitutional bodies like NCSC, NCST, UPSC etc. as well. However, their heads are not constitutional posts.

Bogus Appointment Process


Current process of such appointments are frankly bogus in nature. Barring President and Vice-president who are elected directly, all of these appointments are executive in nature, that is, govt. issues notification appointing any person (usually senior bureaucrats) for such important posts, yes just ANY!

Why is it inappropriate? Aay, Almost always it turns out to be political in nature. Govt. has loyalists and it'd like them to be on these posts so that it can reap political benefits later. Just look at role of VS Sampath and you'd understand how its done. Bee, These posts carry fixed tenure often extending above regular retirement age for civil servants. They are also full of special perks, makes life enjoyable and royal. For example, CEC enjoys same perks as that of CJI! Who would not want them? Cee, Although they are called constitutional posts, their is hardly any "constitutional" mandate for such appointments. Our supreme court is the gatekeeper of constitution but there is no provision for supreme court judges to scrutinize such appointments or have a say in them. And finally Dee, it encourages favoritism, grouping, nepotism and corruption in senior bureaucracy. A person entering IAS cadre sets its eye on such posts from day 1. What do you expect them to do? When system is like that, they bend their ways to rise up the ladder in order to sit on these lucrative posts.

Constitutional Appointment Committee


Now you understand that how crooks like VS Sampath get to an important position like CEC. But what is the way out? Should this be allowed to continue? We must reform our governance methods to keep the appointments clean and upright. How can it be done?

First) Form a Constitutional Appointment committee for all such appointments. Include political representation like Prime minister and Leader of Opposition. Also include constitutional representation in form of Supreme court judges. For a particular post, also take notes from existing and previous post holders. This is because they are equipped with relevant experience and can judge talent/capability of the nominees appropriately.

Second) Make a provision to include its "Constitutional" mandate. Supreme court is the gatekeeper of constitution and it should have a say in such appointments. To avoid a political nexus to capture these posts, empower majority of constitutional representation over political representation. It is safe because SC judges have hardly any political benefits to reap out of such posts.

Third) Democratize process of nomination and criteria for eligibility. Who can be Election Commissioner of India? What is his eligibility? There are hardly any, except he should be an "experienced bureaucrat". Eligibility criteria for each post should clearly be defined. For example, post of CAG certainly requires experience in Finance and not Defense (check credentials of current CAG Shashi Kant Sharma). What good is a CEC who hasn't even been a Returning Officer in a state? Second question is of who finds a place in the list of nominees. Currently, it is job of DoPT to prepare list of "suitable" candidates for such posts. It is anyone's guess that who all will feature in such a list. In spirit of democracy, it is important that all "eligible" candidates should be allowed to "apply" for such a post. Their scrutiny should be publicly available (may be after appointment process is over) so that it is before people of country as well as candidates for scrutiny and to ascertain the fairness of process.

Fourth)  Make all such appointments "apolitical" in nature. Bureaucrats are supposed to be non-political in nature by service guidelines but they hardly are. Those who are not but rather upright like Ashok Khemka are hounded and sidelined. Because such appointments take place at the fag end of their career, they can be scrutinized for being members of political parties or having inclinations towards or received favors from parties and if so, should automatically be barred from holding such posts. This will send a strong signal to bureaucrats to better be apolitical not just on paper but also in spirit and their actions.

Fifth) High integrity and abrogation of post-retirement benefits. What good is a man without high integrity! We look upon CEC or CAG as upholder of our democratic election and public expenditure respectively. If their commitment to the nation and high ethics itself is in question, they can certainly be influenced. Who can forget TN Seshan who exercised powers of CEC to ensure free, fair and fearless elections in country? Vinod Rai, who exposed several scams of Congress like 2G, Coalgate is one of the first to have utilized the powers of CAG. Another similar issue is of "post-retirement" benefits, which can influence integrity of a person. This culture must be stopped, not just in action but also legally. These posts are very important and any person holding such posts should be barred from any post-retirement benefits. (Ideally any post-retirement benefits should not exist or be very restricted but that's a separate discussion)

Sixth) Transparency of these constitutional posts. It is imperative that not just these but all constitutional posts and bodies be as transparent as possible. Why are DMs transferred during polls? How are Returning officers selected? CAG has understandably become active under RTI under brilliant Vinod Rai. ECI recently published voter lists in many states online for people to verify their names.

Last, many other posts are important but are yet to be made as important as constitutional. Quasi-judiciary bodies like NCSC and NCST should have its heads as constitutional posts. Today they are enjoyed as post retirement benefits by judges. CBI director, ED director, IG of States etc very important posts and should have constitutional status for their independent functioning. By using above explained constitutional appointment committee, all these posts can also become non-political and independent in nature. Similarly, constitutional amendments should also be ratified by a constitutional bench (say comprising of five most senior judges), giving its "constitutional" mandate.

Our authors of constitution may never have thought that its main party Congress would stoop to such levels and manipulate these sacred bodies for its own political benefits. However, time has come that such practices are checked so that god forbid if at all an idiot, pappu, buddhu, gadha like Rahul Gandhi makes it to PM seat, he should not be allowed to run his mind to ruin this great country.

Swaraj Bharti
Shaurabh Bharti

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