In an important judgment yesterday, a five-judge bench of supreme court of India unanimously ruled that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) must be appointed by a selection committee consisting of Prime Minister, Chief justice of India and the leader of opposition in Lok Sabha. The court was hearing the matter under a Public Interest Litigation (PIL) seeking to change the current appointment method by the executive to a panel comprising of the above said members. Besides, the court also suggested the need for a permanent secretariate and appropriation of the expenditure of Election Commission of India (ECI)from consolidated fund of India. However, the court remarked that these are policy decisions for the government to decide.
The ruling marks a watershed moment in history since it alters the current procedure for appointing CECs and ECs, over which the government had full control. The judgment as if now, fulfils the constitutional demand for parliament under article 324 (2) to regulate the procedure of appointment made by the president. It is interesting to see how the incumbent government which can comfortably float any bill through the parliament right now, responds to the supreme court ruling. As the Attorney General of India in his submission opposed judicial intervention in the appointment of CEC and ECs arguing that “Judicial intervention in these matters would be at the expense of causing violence to the delicate separation of powers between the Legislature, the Executive and the Judiciary.”
The court fiercely advocated the need to have an independent ECI observing that “A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power”. During the hearing the court had questioned the Center over the appointment of Arun Goel with “Lightening speed”.
So, would this ruling be a game-changer for the Election Commission of India’s independence? In this article, I will attempt to answer the question as well as provide a brief constitutional and historical overview of the commission’s appointment question.
Appointment of CEC and ECs
The election commission of India (ECI) is a constitutional body mandated to conduct free and fair election. ECI conducts elections for both houses of parliament, including the president and vice president of India, as well as assembly elections for states and union territories with legislatures.
Part XV of the Indian constitution (Articles 324-329) provides several safeguards for the ECI’s independence, including fixed tenure, removal procedures similar to those used for supreme court judges, and so on. However, the biggest loopholes that remained since independence in the constitution and was also left during the constituent assembly debates to be resolved by the president or parliament was the appointment procedure of the CEC and ECs. So far, these appointments had been made by the president, proposed by the Prime Minister of India, making it a complete executive action. Although, the constitution under article 324-(2)(5) has vested ultimate power in the parliament to regulate the service conditions of the electoral members of the commission.
Over the years, several bodies, including the constituent assembly, envisioned the appointment of CECs and ECs with different stakeholders. The model for appointment ordered by this judgment was suggested by Justice Tarkunde Committee long back in 1975 itself. The same was reiterated later by Dinesh Goswami Committee in 1990 and Law Commission in 2015.The second Administrative Reform Commission (ARC) even recommended to include law minister and deputy chairman of Rajya Sabha in the appointment panel. In 1990, based on the Dinesh Goswami Committee, the 70th constitutional amendment bill was introduced demanding a selection committee. It failed to pass and was ultimately withdrawn in 1993 due to a lack of political will. In 1991, Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, was passed. However, it dropped the idea of a selection committee for the appointment of CEC and ECs.
Clearly, the supreme court’s decision was not made in a vacuum. It has only complied with the constitutional requirement that the parliament was obligated to meet, as well as the recommendations of other bodies, including the law commission. The designation of the ECI as a quasi-judicial body is also a convincing argument for ending the executive’s monopoly on the appointment of electoral commission members. As it violates the cardinal principle of separation of power especially between the executive and the judiciary.
The ruling: A Game Changer?
There is no straightforward answer to this question. Nonetheless, this decision will irritate the incumbent BJP administration. This government, to which institutional autonomy is anathema, will leave no stone unturned in its efforts to circumvent the supreme court’s ruling. It can do the following to maintain its role in the appointment of election commission members:
First, the government will implement this verdict without bringing any legislative measures to alter or overturn the Supreme Court’s decision. In this instance, the government has the CBI director or Lokpal appointment model with same panel members as in this case, where the government advance the names from a pool of favorable officers for the selection. So, anyone selected will do the job.
Second, as the constitution gives parliament the ultimate authority to formulate and regulate the service conditions of electoral commissioners, the government will likely introduce a bill to either reverse the decision or, more likely, alter the panel’s composition in its favor. As is the case with almost all bodies, such as the National Human Rights Commission (NHRC) and the Central Information Commissioner (CIC), among others.
Only time will tell whether the ruling will be a game-changer for the ECI’s independence, as it is an evolving matter contingent on the next move of the government. However, the Supreme Court’s ruling is truly historic at this time. The SC must be prepared to thwart any future government attempts to circumvent this ruling. As, the decision has increased, not decreased, the role of the judiciary in preserving ECI’s independence.
Abdul Moid is a PhD Scholar at Maulana Azad National Urdu University in the Department of Political Science. His area of research interest is in the field of Identity negotiation and Muslim Identity. He holds a postgraduate degree in Political Science from the University of Hyderabad and a Bachelor of Arts (Honors) in Political Science from Banaras Hindu University. Prior to his university education, Abdul Moid received his early education in the Madrasa system.
