Context: A 5-judge Constitutional bench of Supreme Court recently mooted the idea of including the Chief Justice of India (CJI) in the committee which appoints Election Commissioner. 

Background

• Article 324 (2) of the Indian Constitution: The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix.
  • It specifies that while the Chief Election Commissioner and Election Commissioners will be appointed by the President, this is subject to Parliamentary law.
• While this provision places an expectation on Parliament to draft a relevant law, such a law has not been enacted yet.
• In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.
• According to the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991, the tenure of a CEC and Election Commissioners is 6 years or until the age of 65, whichever is earlier.
• Petition to reform the appointment procedure of Election Commissioners:
  • In 2015, a PIL was filed in SC contending that Executive making appointments to ECI has degraded its independence over time.
  • It claimed that the current system of appointments violates Article 324(2) of the Constitution and is hence unconstitutional.
  • The PIL pleaded the Court to issue directions to set up an independent, Collegium-like system for ECI appointments.
  • The SC in 2018 referred the PIL to a five-judge Constitution bench for authoritative adjudication.

SC's observations on the procedure for appointing an EC

• In the absence of a law to oversee such appointments, the silence of the Indian Constitution is being exploited.
• The government assures that the person nominated does not serve the full six years by picking someone close to 65, thus undermining independence.
• Any ruling party at the Centre "likes to perpetuate itself in power'' and can appoint a 'Yes Man' to the post under the current system.
• The Bench also directed the Central government to produce the file relating to the recent appointment of retired civil servant Arun Goel as an Election Commissioner, to know the procedure adopted for his appointment.
• There was an application before SC seeking interim orders against filling up the vacant post in ECI. Thus, the Bench observed that how the appointment could have been made given the pendency of an interim application seeking a stay on appointments to the ECI.
• When Centre argued that the apex court can certainly examine and quash the appointment of an election commissioner if an unqualified person is chosen, the bench held that no qualification has so far been fixed for the post, thus question of disqualification does not arise.
• The inclusion of the CJI in the consultative process for the appointment of Election Commissioner would ensure “neutrality” and independence of the poll panel.

Government’s stand on the issue

• Method of appointment of EC in the absence of a law: The Centre adopted a time-tested convention.
  • Under this, a list of serving and retired officials in the position of Secretaries is prepared. On the basis of this, a panel of names is prepared for consideration of the Prime Minister and President.
  • The PM, after considering the panel, recommends one name to the President. A note with the recommendation is submitted to the President of India.
  • The appointment of Election Commissioners follows seniority and the senior among the two ECs goes on to become the CEC.
• Within executive domain: The Union government has defended the current mechanism of appointments, citing the ‘honest record’ of all past Chief Commissioners.
  • It thus urged the Court to not intervene, submitting that the matter falls within the executive realm and it should respect the independence of the executive.
• Misplaced presumptions: The Centre held that it was a wrong presupposition that the mere presence of someone from the judiciary in the panel for EC appointment would ensure transparency and independence.
• Safeguards: The Centre argued that the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 ensured the Election Commission remains independent in terms of salary and tenure to its members.
  • These are intrinsic features for the independence of an institution and hence, there is no "trigger point'' which warrants interference from the court.

Arguments against SC’s suggestion of CJI in the appointment panel

• Risk of violating the separation of powers: The role of the CJI in selection committee can be counterproductive and violate doctrine of separation of powers stemming from Article 14 that all three organs are equal in the eyes of the Constitution.
  • Also, the presupposition that only with the presence of the judiciary, independence and fairness will be achieved, is an incorrect reading of the Constitution.
• Weak assumption: The CJI could be the guarantee to independence is a misconception. For example, the inclusion of CJI on the committee that appoints the CBI director, hasn’t ensured the independence of the investigative agency.
• Executives possess broad vision: Character assessments are aided by selectors who have broad rather than narrow social and institutional experience, which politicians and administrators are more likely to have than judges.
• Misplaced narrative: Whenever it comes to the political executive, the construction of “judiciary neutral and virtuous,” the political executive “partisan and open to manipulation” narrative is dangerous for a democracy.
• Competing with democratic head: Putting CJI on selection committees where the Prime Minister sits is odd, particularly when PM has the authority of the democracy behind him.
  • Thus, in the actual situation of disagreement, it is not clear the CJI should have precedence, or an elected executive.

Conclusion

• The Parliament must decide and debate on the composition of the appointment panel.
• So far, the judiciary has respected and stayed at an arm’s length from the Election Commission, there is no case for changing that.
• The Election Commission has earned public trust due to its exemplary work as an independent and neutral constitutional authority, whose autonomy is guaranteed by the constitution and its functioning insulated from the interference of the executive and judiciary.
• It is one of Indian democracy’s enduring success stories. Hence the ECI must stand its ground in the face of over-reach by the political executive.