The Supreme Court of India verdict taking away the power to appoint members of the Election Commission of India (ECI) from the sole domain of the executive is a major boost to the independence of the election watchdog. The Court has ruled that a three-member committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, or the leader of the single largest Opposition party, and the Chief Justice of India (CJI), will choose the Chief Election Commissioner (CEC) and Election Commissioners (EC) until a law in passed. As a constitutional body vested with plenary powers of superintendence, direction and control over elections, the ECI is a vital component of the republic that requires functional freedom and constitutional protection to ensure free and fair elections. It has been the practice that the President appoints the CEC and ECs on the advice of the Prime Minister, but the Constitution Bench has pointed out that the original intent of the Constitution makers was that the manner of appointment should be laid down in a parliamentary law. Article 324 says the President should appoint the CEC and Commissioners, subject to any law made in that behalf by Parliament. However, successive regimes have failed to enact a law. Justice K.M. Joseph, who has authored the main verdict, has based the Court’s decision on “the inertia” of the legislature and the perceived vacuum in the absence of a law.
Few would disagree with the Court’s fundamental proposition that the election watchdog should be fiercely independent and not be beholden to the executive; and there should be no room for an appointing authority to expect reciprocity or loyalty. The government’s argument that the existing system was working well and there was no vacuum was quite weak, as, admittedly, the convention now is that the Prime Minister chooses a name from among a database of high-ranking civil servants and advises the President to make the appointment. However, a relevant question is whether the presence of the CJI in the selection panel is the only way in which an institution’s independence can be preserved. There is no clear proof that the independence of the Central Bureau of Investigation Director, who is appointed by a panel that includes the CJI, or his nominee, has been preserved or enhanced. Further, the CJI’s presence may give pre-emptive legitimacy to all appointments and affect objective judicial scrutiny of any error or infirmity in the process. On its part, the government will be well-advised to enact a law — but not one that seeks to preserve the current convention to get around the verdict — that is in tune with the spirit of the Court’s emphasis on the ECI’s independence.
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