SC order on ECI will bolster democracy

Last week, a five-judge bench of the Supreme Court (SC) held that the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) will be done by a committee comprising the Prime Minister (PM), the Leader of Opposition in Parliament or the leader of the largest Opposition party, and the Chief Justice of India. In doing so, the SC changed the present practice, where the President appoints CEC and ECs on the PM’s recommendation.

To understand why the SC did so, it is important to look at constitutional history. Article 324(2) of the Constitution — which provides for appointments in the Election Commission of India (ECI) — vests this power in the President (which means, in practice, the Union executive) subject to any law that Parliament might make in this matter. A look at the debates around the framing of the Constitution reveals that its drafters were keenly aware of the need for an independent ECI, which — specifically — they understood to be a commission outside the sole control of the executive in the matter of appointments. However, because they could not agree on the exact wording that would achieve this, they decided to delegate this matter to Parliament, in the expectation that the national legislature would step in and pass a law securing the independence of ECI.

The passage of years, however, belied this expectation, and Parliament did not pass a law. These decades also saw a significant expansion in the powers of ECI — which included not just the conduct of free and fair elections, but also the allocation of symbols to political parties, adjudication of splits within parties (an issue that was recently in the news due to the turmoil in the Shiv Sena), enforcement of the model code of conduct (and penalising politicians and parties that violate it) and withdrawing recognition for some political parties. On top of this was the fact that the Constitution expressly limited the scope of challenging ECI’s decisions in court.

These far-reaching powers mean that, in effect, ECI’s orders have significant impact on the structure of the playing field upon which democratic contests unfold. Through its decisions, ECI can ensure that the playing field is level, or that it gets skewed in favour of some, and to the detriment of others. This is particularly important, as the basis of all governing legitimacy in our democracy is elections, and ECI, therefore, acts as the gatekeeper of this legitimacy.

This combination of the history of Article 324(2) and the role performed by ECI in today’s context, led the SC to hold that Parliament’s failure to pass a law – and, consequently, allowing the executive to control ECI appointments (precisely what the constitutional framers had warned against) – created a gap in the Constitution, which jeopardised free and fair elections and, by extension, the right to vote.

This triggered the court’s jurisdiction to intervene. Looking at prior reform proposals, the court selected the same process that is used for appointing the director of the Central Bureau of Investigation: That is, a committee comprising the PM, the Leader of the Opposition, and the Chief Justice of India.

One may question whether this will solve the problem. The top court’s reasoning is persuasive: ECI belongs to a group of bodies that, across the world, are known as fourth branch institutions.

Fourth branch institutions (such as election commissions, human rights commissions, information commissions, data protection commissions, and so on) are bodies that are required to ensure that certain basic rights are actualised in practice, by providing an infrastructure that can help implement that right on the ground (in this case, the right to vote). Doing so will necessarily place these fourth branch institutions in occasional confrontation with the executive.

As the SC pithily noted, the Union executive – that is, effectively, the leadership of the ruling political party – has a direct interest in the outcome of the elections; consequently, the executive controlling appointments to ECI provides a powerful, structural incentive to skew the playing field. In this context – if the right to vote is to mean anything at all – securing ECI’s independence in the matter of appointments is critical. And, as we have seen, it is also an implied expectation under Article 324(2) that remains unfulfilled.

For these reasons, the SC’s judgment is neither activism nor judicial overreach. Indeed, the apex court has explicitly noted that its verdict is a temporary expedient, which will hold the field until Parliament passes a law; this is an acknowledgment that, ultimately, the Constitution vests the task of securing the independence of ECI in Parliament. Needless to say, there are multiple appointments processes – other than this three-member committee – that can adequately secure ECI’s independence from executive control; Parliament, thus, is free to choose alternatives, as many other countries have done. But of course, any such alternative will also have to adequately secure institutional independence, and, therefore cannot simply restore control to the PM. The SC’s judgment is an important first step towards guaranteeing the EC’s independence, but there are many bends in the road ahead.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal