Free and fair

Law must establish Election Commission's independence

A five-judge Constitution Bench of the Supreme Court (SC) last week unanimously ruled on what was often considered a “constitutional vacuum”. But the approach adopted by the court will not address the basic issue and can be seen only as an interim measure. The court has ruled that appointment of the chief election commissioner (CEC) and election commissioners (ECs) shall be made by the President of India on the basis of advice rendered by a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha (in case there is no Leader of the Opposition, then the Leader of the largest Opposition party in the House) and the Chief Justice of India. The appointments thus far were made by the President on the advice of the Prime Minister.

There is no dispute that the Election Commission should be independent and free from any influence of the executive. This is an absolute necessity for having free and fair elections, both at the national and state levels. There has been concern in different sections of civil society that the existing process of appointing the CEC and ECs can potentially undermine the independence of the Election Commission. Although the Election Commission has been manned by people of impeccable credentials over the years, which enabled a number of reforms and made elections more credible, it is also true that political parties in recent years have raised concern over its conduct. In any case, the appointment of the CEC and ECs on the advice of the Prime Minister or the Cabinet was not entirely in the spirit of what the Constitution or the Constituent Assembly had envisaged. This was also an interim measure.

The court judgment has in detail analysed the Constituent Assembly debates in this context. Article 324(2) of the Constitution states: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners… the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.” Since Parliament has not made the law in all these years, the appointments are being made by the President on the advice of the Prime Minister. Talking about the background of the relevant Article, the judgment noted that the founding fathers did not intend “... the executive exclusively calling the shots in the matter of appointments to the Election Commission”.

However, since the issue is of the independence of the Election Commission, the committee established by the court to advise the President on appointments would not make much difference. The director of the Central Bureau of Investigation, for example, is appointed by a similar panel, but the institution is regularly under attack for its conduct. In fact, entering the process of appointing the CEC and ECs would mean that criticism would be directed at the highest court also. The appropriate solution thus is to bring a comprehensive law as envisaged by the Constituent Assembly for the appointment of the CEC and ECs, along with establishing other aspects of the Election Commission’s independence. It is important to note in this context that the law should not simply extend the powers of the executive. It will be critical that the law establishes the independence of the Election Commission beyond doubt.