A more independent Election Commission

The Supreme Court's judgment on appointments is not a case of judicial overreach, but is intended to protect the fundamental rights of citizens

The Supreme Court has ruled that the Chief Election Commissioner and Election Commissioners shall be appointed by a committee comprising the Prime Minister, the leader of the Opposition in the Lok Sabha (and, if there is no such leader, the leader of the largest party in the Opposition) and the Chief Justice of India.

Thus far, these appointments have been made by the President on the advice of the Prime Minister (PM). In effect, the PM has been the sole authority in the matter. Not anymore. The Supreme Court has made it clear that the procedure it has laid down will be in place until such time as Parliament enacts a law for the purpose.

As the judgment notes, the Election Commission (EC) has sweeping powers. The EC can register a political party. It can recognise political parties and allot symbols. When a party splits, it can decide which splinter is the original party. It can punish political parties for violation of the model code of conduct. It can ban a candidate from campaigning. Any of these powers, if misused, can come in the way of free and fair elections.

All political parties have been vocal about the alleged misuse of powers on the part of the EC. And yet no government has thought it necessary to distance appointments to the EC from the executive. The appointments have been made from the civil services. The government of the day is bound to pick bureaucrats who will be favourably disposed towards itself. Several committees and the EC itself have, over the years, recommended a radical change in the appointment process, but to no avail.

The Supreme Court has now thought it necessary to step in. Its judgment will be widely welcomed. Free and fair elections are an essential requirement of democracy, and having a truly independent EC is a necessary condition for the same.

In dealing with the matter, the court faced some difficulty. A reading of the relevant article of the Constitution does not seem to give the court scope to intervene. Article 324(2), which deals with the appointment of Election Commissioners, says, “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 and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

Illustration: Binay Sinha

The Constitution does not mandate Parliament to make a law for the selection of Election Commissioners, as the court readily concedes. The Constitution has left it to Parliament to make the law. The 169-page judgment is worth reading because it spells out the constitutional and legal basis for the Supreme Court to, nevertheless, intervene in the matter.

The Supreme Court has delved into the debates on the subject in the Constituent Assembly. It is clear that members of the Assembly did not want appointments to the EC to be left entirely to the executive. They wanted the appointments to take place in accordance with certain norms. It was to meet this expectation that B R Ambedkar introduced the amendment, which allows Parliament to create a law regarding the process of appointing Election Commissioners.

Parliament has not passed such a law. We do not have an EC whose independence is assured in the way the framers of the Constitution intended. The vital insight in the judgment is the linkage the court establishes between the independence of the EC and the citizen’s exercise of his fundamental rights.

The right to vote itself is not a fundamental right. But the expression of that right at the time of voting, the Supreme Court says, is a facet of freedom of expression, which is a fundamental right. Voters cannot express themselves freely unless they have the necessary information. An independent EC can ensure that the information is made available. 

Moreover, free and fair elections mean that candidates and parties are not discriminated against in any manner. If they are, it would mean a violation of the right to equality, which, too, is a fundamental right. Not having an independent EC compromises the citizen’s exercise of his fundamental right to freedom of expression and equality. The Supreme Court is thus intervening in the present situation in order to protect the fundamental rights of the citizen.

In what way do appointments to the EC solely by the executive compromise its independence? The Supreme Court invokes the “legitimate power of reciprocity” cited in an earlier judgment. If an individual benefits from an action of another, he would feel the need to reciprocate. The post of Election Commissioner is one that many civil servants would covet. If the executive appoints an individual to the post, the individual would feel beholden to the executive and would want to reciprocate. Having a committee appoint the members of the EC increases the likelihood that the appointee will be unbiased in his functioning.

The Supreme Court is well aware of the separation of powers amongst the executive, legislature, and judiciary. It understands that in laying down a process for the appointment of members of the EC, it is venturing into the legislature’s turf. The judgment addresses this issue as well.

The court points out that the making of laws is not the sole prerogative of the legislature. From time to time, constitutional courts throughout the world have made laws and created new rights. Moreover, the highest court may step in where any of the other organs is seen to have fallen short of its duty.

The makers of the Constitution were clear about the need for a law that would spell out the procedure for selecting members of the EC. Parliament’s failure to come up with such a law for seven decades has created a vacuum that obliges the Supreme Court to step in.

The court’s arguments are compelling. Anybody who reads the judgment will find it hard to fault the Supreme Court for judicial overreach. The court is at pains to emphasise that the remedy it has provided will be in place only until such time as Parliament devises an appropriate remedy itself. The best thing that can happen now is that Parliament itself provides a lasting remedy, one that fully captures the intent of the makers of the Constitution.

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