On Thursday, a five-judge Constitution Bench laid down that the Chief Justice of India and Leader of the Opposition will join the Prime Minister in a panel that will select the Chief Election Commissioner (CEC) and other Election Commissioners (EC) until a new law is in. So far, these officials have been appointed as per Article 324 (2) by the President “subject to the provisions of any law made on that behalf by Parliament”. That law still not made, four PILs filed before the Court, between 2017 and 2022, flagged concerns over the Executive’s preponderant role and called for a neutral panel. Of late, the EC has, undeniably, wavered: From shooting off a letter to parties asking how they will pay for manifesto promises — echoing the ruling establishment’s revdi discourse — to its decision to stop campaigning during the brutal Delta wave only after the Prime Minister had made his speech; its barely slap-on-the-wrist interventions on hate speech, its joining an “online interaction” chaired by an official in the Prime Minister’s Office after a letter that read more like a summons and its decision to keep in abeyance the schedule for elections to fill three Rajya Sabha seats from Kerala after a Law Ministry note.
Yet, the SC’s solution is problematic. Including the Leader of Opposition does broad-base the panel — there is a strong case for the Opposition to have a voice in the composition of an institution whose primary job is to conduct free and fair elections. However, making the CJI part of the appointments process for such an institution risks blowback to the court’s authority which must be avoided — because the constitutional system of checks and balances depends on it. The ruling also comes at a time of unusual tension between the apex court and the government, over the process of judicial appointments and the primacy of the judiciary in it, and even the Basic Structure doctrine that mandates the court to review and restrict Parliament’s powers to amend the Constitution’s foundational principles. If such criticisms have stoked apprehensions about the executive trying to browbeat the judiciary, the SC verdict invites questions about the country’s highest court intruding outside its domain. It gives its critics another round of easy ammunition in a fight that corrodes rather than strengthens.
The five-judge bench is right to underline that “the fate of the political parties and its candidates, and therefore, of democracy itself to a great measure, rests in the hands of the Election Commission”. But parts of its verdict sound too-dire and alarmist, ironically when the Court has been very respectful of the EC’s powers — whenever these have been challenged. The Court has prefaced its decision to set up the panel with mention of the “unrelenting abuse of the electoral process over a period of time”. With due respect, where is evidence of this “unrelenting abuse?” Its repeated invocation of “a vulnerable Election Commission” does not do justice to the place the ECI has made for itself as the well-regarded centrepiece of a complex electoral system. The panel to appoint the CBI director has a similar collegium, with the CJI and the LoP, but its record of prosecution doesn’t quite read like an exemplary testament of institutional autonomy. In a hearing in November 2022, the Court had asked: “How do we get somebody who is above politics”. A good question, but it needs a more rigorous answer than the one the court has come up with, facile and fraught.
