Friday, Dec 09, 2022

Pratap Bhanu Mehta writes: Why the judiciary may not be the best selector of election commissioners

SC should address specific concerns about EC, not use ad hoc observations to undermine legitimacy of institution

Newly appointed Election Commissioner Arun Goel (File)

The Supreme Court is creating a minor buzz by hearing a case pertaining to the appointment of the election commissioners. In terms of maintaining the integrity of the electoral process, the case pertaining to electoral bonds is far more consequential than this one. It will be the real test of the Court’s commitment to the integrity of the electoral process. Issues pertaining to the appointment of election commissioners are, at best, pocket change in this story. The Court and the public should not be misled by erroneous and purely lawyerly framings of the issue. What you might end up with, as is often the case, a simulacrum of reform, while substantive issues go unaddressed.

The Election Commission (EC) has evolved over time. Like so many constitutional evolutions, including that of appointments of the Supreme Court itself, change has produced anomalies. Article 324 envisaged that the Commission be led by a single CEC (Chief Election Commissioner), though the President can appoint more commissioners. As the wonderful chapter on the Election Commission by E Sreedharan and Milan Vaishnav in Public Institutions in India documented, there are several unresolved issues. The number of commissioners the EC can have is not specified. In principle, a government can enlarge the Commission sometimes with a view to undermine the authority of existing commissioners. The Supreme Court itself left this matter hanging when it put its seal of approval on the expansion of the Commission in 1995. The other commissioners do not enjoy the security of tenure and constitutional status of the CEC. Could this affect their independence? What are the CEC’s powers in relation to other commissioners? Can the CEC ask them for an explanation of conduct or recommend their removal, as N Gopalaswamy had claimed in the case of Navin Chawla? What happens in the case of open conflict between the commissioners? Potentially, there is another issue. There have been demands that the CEC be selected by seniority amongst existing commissioners. As Vaishnav and Sreedharan pointed out, all of these issues have been put to the test in the past. But the striking thing, in their account, is that, in the end, these matters were resolved by political negotiation, restraint and judgement.

There are concerns over the partisanship of the EC. The Commission has made many questionable judgements. Concerns about its political neutrality are growing. But the Supreme Court needs to be careful here. It should address specific concerns. It should not use ad hoc observations to undermine the legitimacy of the EC as a whole, as if one constitutional body commenting on another was drawing room talk.

But of more concern is the persistent delusions we have about what produces independent institutions or institutional leaders. The prevailing framing seems to be that if there is a “collegium” type system of which the Chief Justice of India is a member, you will get better appointments. This theory is deeply misguided.

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It is difficult to get minds besotted by legalism to see that institutional design seriously underdetermines the performance of an institution. Formal appointments processes are no predictors of performance or bulwarks against the underlying distribution of political power. The Supreme Court itself is a great example. The role of the CJI in selection committees can be counterproductive. Institutionally, the desire within the judiciary to get more entangled in appointments is possibly more about leverage than virtue. It risks violating the separation of powers. In the appointment of the CBI director Subodh Kumar Jaiswal, the then CJI’s presence ensured that some candidates were put out of contention by invoking the rule that persons close to retirement should not be appointed. But the CJI then ended up publicly commenting on the virtues of and style of functioning of the chosen candidate. But more importantly, has the CBI’s reputation for independence and neutrality in any way been enhanced with the CJI’s presence on the selection committee? If it has, the message is certainly lost. Or think of neutral committees making a hash of appointments of vice-chancellors.

Third, there are peculiar assumptions about who is in a good position to judge the best candidate, especially in complex institutional roles. These judgements, especially when they involve character, are never easy. But they are often helped by selectors having a wide rather than narrow social and institutional experience (which politicians and administrators are more likely to have), than judges, especially who by their vocation need to be a bit distant from the grubby workings of power. It is important not to fetishise personal qualities ex ante. So many of our independent institutions, judiciary included, are littered with the mayhem caused by good candidates. And so many ex post heroes like T N Seshan, would have been disqualified on their prior reputations for political intrigue. Some who did excellent work, like M S Gill, cast a shadow on their own good work by accepting political appointments post-retirement. Obviously, there is a sense in which we all search for good candidates to the best of our knowledge. But a historic sense of roles, occasions, structures and actual tests of temptation matter far more. The late Bhairon Singh Shekhawat used to often say that kursi charitra dikhate hain, aur kaam sikhate hain (it is the chair that reveals the character, and teaches you the work). In the end, structures of accountability matter more.

We should be troubled about the construction of legitimacy implied in placing the CJI in these situations. Whenever it comes to the political executive, this construction of “judiciary neutral and virtuous,” the political executive “partisan and open to manipulation” narrative is dangerous. Putting Chief Justices on selection committees where the Prime Minister sits is odd. For one thing, no matter what you think of particular PMs, they have the authority of the demos behind them, and in the actual situation of disagreement (unless there is some rank illegality), it is not clear the CJI should have precedence, or be thought of as a more virtuous check on elected executives. In most cases, they will not be able to compete with the authority of the Prime Minister anyway.


We continue to play out this charade that some formal administrative tinkering with appointments and procedures can replace political accountability. We all applaud double-engine governments, but worry less about the fact that the key engine of democracy, Parliament, is more or less defunct as an institution of accountability. Many of the questions about independent institutions would be better resolved using Parliament and parliamentary committees. With courts, you risk getting only illusory virtue signalling, while those who want to subvert democracy laugh all their way to the bank.

The writer is contributing editor, The Indian Express

First published on: 23-11-2022 at 06:00:08 pm
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