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Published on: March 13, 2023, 1:28 p.m.
Reforming ECI
  • The Supreme Court’s verdict is a major boost to the independence of the election watchdog

By Rakesh Joshi. Executive Editor, Business India

As a constitutional body vested with plenary powers of superintendence, direction and control over elections, the Election Commission of India (ECI) is a vital component of the republic that requires functional freedom and constitutional protection to ensure free and fair elections. Yet, of late, the ECI has not covered itself with glory. Indeed, it has become a handmaiden of the ruling party of the day, subservient to the interests of the government. In fact, many have charged it with queering the political level field in favour of the ruling party and against its political rivals.

The convention now is that the Prime Minister chooses names of Chief Election Commissioner and Election Commissioners from among a database of high-ranking civil servants and advises the President to make the appointment. Over the past two decades, many well-meaning people have been advocating for reforms in the appointment procedures of the CEC and ECs.

Finally, a five-judge Constitution bench, presided over by Justice K.M. Joseph, has ruled unanimously that the appointment of the Chief Election Commissioner and the Election Commissioners will be done on the advice of a committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha – and in case there is no such leader, the leader of the largest party in the Opposition in the Lok Sabha – and the Chief Justice of India. “This will continue to hold good till a law is made by Parliament”.

The Supreme Court verdict taking away the power to appoint members of the ECI from the sole domain of the executive is a major boost to the independence of the election watchdog. Currently, it has been the practice that the President appoints the CEC and ECs on the advice of the Prime Minister, but the SC has rightly 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 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.

No vacuum?

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 was that the existing system was working well and there was no vacuum. 

However, a relevant question that arises 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 Director, Central Bureau of Investigation, 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.

  • It is evident that the drafters of the Constitution envisaged that any laws on this aspect shall be drafted by the legislature, as it reflects the confidence of the public at large

Hitesh Jain, managing partner, Parinam Law Associates, feels that the Court has acted in blatant disregard of the doctrine of the separation of powers. The doctrine of separation of powers, he argues, flows from the Constitution itself, which sought to establish three institutional organs – namely, the executive, legislature and the judiciary.

The Constitution also designated the functions of each of these organs wherein the legislature was to enact the law, the executive to enforce the law and the judiciary to adjudicate upon the law. However, the same Court which once recognised this doctrine as a part of the ‘basic structure’ of the Constitution has turned it on its head.

The Constitution under Article 324, Jain points out, stipulates that the appointment of the Chief Election Commissioners and other Election Commissioners shall, subject to any law, be made by the President. Hence, it is evident that the drafters of the Constitution envisaged that any laws on this aspect shall be drafted by the legislature, as it reflects the confidence of the public at large.

Pertinently, there was no mention whatsoever about the role of the judiciary in the appointment of either the Election Commissioner or the functioning of the Election Commission itself. The Court appears to be on the wrong footing by stating that it is merely filling up ‘vacuums’ as an alternative system for appointments already exists.

It remains to be seen if such arguments provide the government ammunition to preserve the current convention and get around the verdict or the government enacts a law that is in tune with the spirit of the Court’s emphasis on the ECI’s independence.

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