India's CEC Appointment: SC Shifting Onus to Govt Won't Guarantee Independence

Is the debate over institutional independence in India one between elites competing for control of institutions ?

Image: Deeksha Malhotra/The Quint

In Douglas Adams’ Hitchhiker’s Guide to the Galaxy, an all-powerful supercomputer takes millennia to put forth “42” as the answer to the ultimate question on life, the universe, and everything. When questioned about the absurdity of the answer, the supercomputer points out that no one asked the right question.

A Constitution Bench of the Supreme Court has said that until the Parliament makes an appropriate law under Article 324 of the Constitution, the appointment of the Chief Election Commissioner and Election Commissioners shall be based on the advice tendered by a committee composed of the Prime Minister of India, the Leader of Opposition in the Lok Sabha (or, the leader of the single largest party in opposition) and the Chief Justice of India. This is certainly an answer—but what is the question?

Gaps in EC's Appointment

Reading through the 61,000 or so words of the majority opinion authored by Justice KJ Joseph, one is not any more enlightened about what the question is.

The primary claim of the petitioners seems to be that in the absence of a law made by Parliament to govern the manner in which the CEC and ECs are appointed, there is a “vacuum” and given that the Election Commission’s work is fundamental to the electoral process and democracy, it would be necessary for the court to step in and direct how appointments should be made.

On the face of it, there is merit in this argument, but on closer examination, one finds large logical gaps that stand exposed. While no doubt there is no law which governs the manner of appointment of CECs and ECs, it does not follow that there is a “vacuum” in the process. A vacuum would be one where no norm exists that would require judicial intervention. That is certainly not the case here.

In fact, the Constitution itself says that the appointment shall be made by the President and he constitutionally acts only on the aid and advice of the Prime Minister and his cabinet. While a law made by Parliament to govern the process may be desirable, it is not absolutely essential.

One cannot even argue that the absence of a law has caused any confusion over the process. Over seventy-odd years, there has been no confusion about the process of appointment as governments run by every party in power in the Union have followed the same process of appointment.

Has following this norm led to deleterious consequences that require us to change this norm? If the manner of appointment of CECs and ECs has left us in a situation where the results elections inevitably favour the incumbent, one could make the argument that allowing the sitting government to choose, has directly influenced the outcome of elections. Furthermore, if the perception of bias was to be a factor, we would see low turnouts or major opposition parties simply boycotting elections.

How Independent Is The Role Of An Election Commissioner

A look at independent India’s electoral history suggests otherwise. Save for the brief period of Emergency, timely elections have taken place whether at the national or state level, and incumbent governments, even those who chose the CEC in the first place have been voted out of power.

What follows from this perhaps is that the manner of appointment of CECs is not per se problematic nor have problematic consequences followed from it. So what problem does the new committee recommend names address? Or more simply, what is the question that this judgment is an answer to?

Reading through the judgment, the best one can say is that the question that the court is trying to answer is “What should be the manner in which CECs and ECs are appointed in order to ensure their independence?”.

This is a fundamentally flawed question. At no point does the court conclude that the present manner of appointment is antithetical to independence. Nor does it say that a committee is the only way to ensure the independence of CECs and ECs. The best argument it can muster is that leaving it to the political executive alone might compromise the said independence.

Given how majority governments exercise their powers in India this is not a far-fetched fear. A committee comprising the CJI and Leader of Opposition might reduce the power of the political executive to act unilaterally but it is no guarantor of the independence of the appointee particularly in the absence of any norms for an appointment which might allow for an assessment of a candidate’s independence.

As others have already pointed out, the example of the Central Bureau of Investigation, the Central Vigilance Commission, and the Lokpal show that simply involving members from outside the political executive does not guarantee the independence of the agency. As much as there is a case for reform of the Election Commission, all change does not imply reform in the larger public interest.

Rise Of Global Movement For Institutional Independence

The topic of institutional independence and reform has gripped democracies around the world. Even as we speak, Mexico is seeing mass protests over proposed changes to their equivalent of the election commission and Israel over proposed changes to the judiciary in both cases because they weaken the independence of the institution.

Closer home, Pakistan’s lawyers and the public took to the streets when President Pervez Musharraf attempted to remove Chief Justice Iftikhar Chowdhury.

A judgment like this raises deeper and more fundamental questions--is the “debate” over institutional independence in India simply one between elites competing for control of the institutions or is it a larger political issue? Is the obsession over appointment processes merely an effort to gain one more seat at one more table? And if mistrust of motivations is to be assumed, can simply changing the rules and processes engender trust in the institutions themselves.

(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)