Selective decisions

Parliament the best arbiter of EC appointment

The five-judge Constitution Bench of the Supreme Court hearing the case on the process of appointing Election Commissioners has made headlines for acerbic commentary and a suggestion that the Chief Justice of India (CJI) be part of the appointment panel that selects the Chief Election Commissioner (CEC). This suggestion is not new; over the past decade, several politicians and former CECs have raised similar calls for a bipartisan collegium, including the law minister, the CJI, the Comptroller and Auditor General of India, and the leaders of the Lok Sabha and Rajya Sabha. This suggests that there has been some level of discomfiture within the political system with the existing process which involves appointment by the President on the recommendation of the Prime Minister. Until recently, the largely free and fair elections that the Election Commission (EC) has overseen in independent India rarely made the issue of appointments a burning question. The batch of petitions before the apex court was prompted by suspicions that the EC’s independence has been increasingly compromised in recent years — notably during the Covid-19 pandemic, when restrictions on campaigning were imposed after the Prime Minister’s campaigns had concluded.

But the Supreme Court’s suggestion is problematic for several reasons beyond the standard, if valid, argument of judicial overreach. For one, the CJI’s presence has not proved a durable guarantee of institutional independence. The CJI sits on the appointment committee for the Director of the Central Bureau of Investigation, an institution that remains so notorious for its subservience to the executive that the Supreme Court evocatively described it as a “caged parrot”. Indeed, when CJIs themselves have accepted political appointments after retirement, the institution itself cannot be considered immune to political pressure. For another, the observation that several CECs have had short tenures does bear scrutiny in the light of the record of the terms of recent CJIs. The reference to the robust personality of T N Seshan, the headline-grabbing CEC of 1990-96, as a desirable quality in a CEC misses the point: The issue at hand is the institutional robustness of the EC that must transcend personalities.

What the apex court appears to have overlooked so far is that the principal problem stems from the fact that Article 324 of the Constitution, which vests the superintendence, direction, and control of elections with the EC, does not specify how the CEC or the members will be appointed. Clause 2 says the appointment of Election Commissioners and CEC will be made by the President “subject to the provision of any law made in that behalf by Parliament”. Yet no law has been enacted so far. This could be an opportune moment for Parliament to exercise its fiduciary duties in respect of the functioning of democracy and initiate the process. Fears that the majority of the current Parliament may result in an exercise that simply endorses or enhances the powers of the executive can be allayed if the ruling regime exercises due restraint and launches a multi-partisan exercise to frame legislation that ensures functional independence. A restriction on CECs and Election Commissioners holding post-tenure political appointments would be one compelling recommendation. But overall, the principle of Parliament as the arbiter of the appointment process remains unexceptionable.