The five-judge Constitution Bench of the Supreme Court has proposed the idea of including the Chief Justice of India in the committee that appoints the Chief Election Commissioner (CEC). The Bench observed that this would help ensure “neutrality” (in the functioning decisions of the institution) and the selection of a person who “does not allow himself to be bulldozed”. The Bench is right in flagging the need for the Election Commission (EC) to be insulated against political pressure. The court’s implicit trust in itself is understandable. However, that the CJI’s presence in the appointment panel can provide that shield is a fraught assumption.
Indeed, the Election Commission has earned public trust due to its exemplary work as an independent and neutral authority that both organises and referees elections with minimum fuss and controversy. This achievement has been made possible because as a constitutional authority, the EC’s autonomy is guaranteed and its functioning insulated from the interference of the executive and judiciary. It is one of Indian democracy’s enduring success stories. However, there is growing concern on that front, as the SC Bench has suggested. In November last year, then CEC and the two commissioners joined an online “interaction” called by the Prime Minister’s Office (PMO). At the peak of the pandemic, the panel imposed Covid restrictions on electioneering only after the Prime Minister completed his campaign. Its unwillingness to censure the ruling party’s top leadership for violating the Model Code of Conduct while pulling up Opposition leaders during the 2019 general election; delaying a Rajya Sabha poll in Kerala to consider a reference from the Law and Justice Ministry, its alacrity in joining the freebie debate, raise questions about pressure. However, the corrective has to be provided from within the institution itself. In fact, the Commission must stand its ground in the face of over-reach by the political executive, it must push back — and be seen to be pushing back.
Every institution, it’s been said, is to some extent, the “lengthened shadow” of its leader. The SC’s proposal for reforming the appointment of Commissioners, has highlighted some pertinent issues about institutions and their autonomy. But by asking for files related to appointments of commissioners and underlining that the CJI could be the guarantee to independence, the court is taking a blinkered view. The CJI is on the committee that appoints the CBI director, surely that hasn’t ensured the independence of the investigative agency — the agency and the political executive decide on that. Perhaps there is a case for the Leader of the Opposition to also have a say, but let Parliament decide and debate that. So far, the judiciary has respected and stayed at an arm’s length from the Election Commission, there is no case for changing that.
