Opinion Former CEC S Y Quraishi writes: Supreme Court order on appointments will enhance Election Commission’s credibility

Article 324(2) of the Constitution had stipulated that the Chief Election Commissioner and Election Commissioners shall be appointed by the President subject to the provisions of any law made in that behalf by Parliament. This hasn’t happened for seven decades.

The Bench noted that while several political parties have been in power, none of them framed a law or process for appointments to the Election Commission. It said that this is a “lacuna” in law and that making of law under Article 324 of the Constitution is an unavoidable necessity.

The role of the Election Commission is such that in the modern election process, it can be abused, inter alia, by simply playing with the election schedule. The executive, being the sole arm of the state involved in the appointment, ensures that the Commission becomes/remains a partisan body and a branch of the executive. The concept of the power of reciprocity and loyalty to the appointing body is invoked.

The demand for an independent system for the appointment of members of the Election Commission goes back nearly 50 years. It has been repeatedly recommended: The Justice Tarkunde committee 1975; the Dinesh Goswami committee, May 1990; the second administrative reforms commission, January 2007, and by the Law Commission of India in its 255th report of March 2015.

Elections are the bedrock of democracy and the Commission’s credibility is central to democratic legitimacy. By severely restricting the hold and control of the executive body over the institution, the now-reformed system of appointments ensures that the independence, autonomy and institutional integrity of the Commission are intact and well-protected.

“A person who is in a state of obligation or feels indebted to the one who appointed him fails the nation and can have no place in the conduct of elections, forming the very foundation of democracy,” the Court observed. It has also said that “it is important that the appointment must not be overshadowed by even a perception that a yes man will decide the fate of democracy and all that it promises.”

I had long pointed out that nowhere in the world does the executive unilaterally appoint an election commission without wider consultation. In most countries, not only is the Opposition consulted but Parliament approves the appointment. The Supreme Court has taken into consideration the system followed in many countries.

I have always declared that even though I was also appointed through the same “flawed” procedure, I would have felt stronger if the Leader of the Opposition was also a signatory to my appointment.

This new procedure will go a long way in bringing about greater credibility and impartiality to the institution. Most importantly, this will ensure that the perception of neutrality of the Election Commission will be maintained. We know that the institutions must not only be autonomous but also appear to be so for the sake of public perception and trust.

The judgment also brings a certain uniformity in appointment procedures across institutions and statutory bodies responsible for independently maintaining democracy and institutional autonomy. This is because we already follow the collegium system for the appointment of several other constitutional authorities like the judges of the higher judiciary, and statutory authorities like the Central Information Commission and Central Vigilance Commission. Even the head of a government department, like the director of the Central Bureau of Investigation (CBI), was brought under a collegium system on the orders of the Supreme Court, in view of its critical role in democratic governance.

Critics of the judgment have brought in the concept of separation of powers. This issue was clinched as far back as 1973 (Golak Nath and others versus State of Punjab and another) when the Supreme Court held that the Constitution is supreme and all authorities function under this supreme law of the land. Let us remember that the apex court is empowered to judge the validity of legislation itself.

Some have accused the court of judicial activism. Certainly not. The Court has not acted suo motu or on a PIL or an appeal or representation on a postcard. It has adjudicated on not one or two but four civil writ petitions. Despite having the power to issue a writ of mandamus, it has refrained from doing so.

As regards the relief relating to putting in place a permanent secretariat for the Election Commission of India and charging its expenditure to the consolidated fund of India, the Court makes a “fervent appeal” that the Union of India/Parliament “may consider” bringing in necessary changes so that the Commission becomes truly independent.

The judgment has left some critical issues unresolved like granting the same protection to Election Commissioners from being removed as provided by the Constitution to the Chief Election Commissioner. While Justice Ajay Rastogi in his separate judgment mentioned that it is “desirable” that the grounds for removal of the election commissioners shall be the same as that of the Chief Election Commissioner, the protection from removal which is essential for the independence of the commissioners has not been granted. Let us be clear that the protection from removal granted by the constitution to the Chief Election Commissioner was not meant for an individual but for an institution. That institution consisted of one individual then but has consisted of three since the 1993 Act. Logically, the protection should have extended automatically.

While the Court dwelt on issues like the criminalisation of politics, the role of money power and the questionable role of the media, these, though important, were at best side issues. One hopes that the remaining issues will be taken care of through comprehensive legislation, which this judgment may trigger.

The writer is former Chief Election Commissioner of India and the author of An Undocumented Wonder – The Making of the Great Indian Election