SC ruling on ECI marks a new era
At a time when the poll panel faces criticism, the apex court order argues for transparency and fairness
In a landmark verdict, the Supreme Court (SC) on Thursday set the contours of the selection of the people who oversee the largest democratic exercise in the world. A unanimous order by a five-judge Constitution bench said that a panel comprising the Prime Minister (PM), the Leader of Opposition (LoP), and the Chief Justice of India (CJI), shall appoint election commissioners (ECs) and the chief election commissioner (CEC) until Parliament brings in a law in this regard. The verdict attempts to plug a gap created by the silence of the Constitution on the mechanism to pick ECs and CEC, and an absence of rules and a framework governing the process. Under Article 324(2) of the Constitution, the President is empowered to appoint them on the aid and advice of the PM and the council of ministers, “subject to the provisions of any law made on that behalf by Parliament”. However, with no such law in force, CEC and ECs were appointed by the PM and the council of ministers under the seal of the President. The rules for such appointments were also silent on the qualification of a candidate. This sparked a batch of petitions that argued that such an ad-hoc process compromised the integrity of Election Commission of India (ECI) and only a neutral selection panel could shield it from interference. The SC appears to have concurred.
While suggestive of judicial overreach, the order is still an important moment. By putting in place a system, the SC has implied that the current model of selection is untenable and results in a culture where prospective candidates may be beholden to the executive. It has argued for fairness and transparency. Technically, the government can bring in an ordinance or push through a law that can override this order. But, as the now established process of selecting the Central Bureau of Investigation (CBI) chief shows, once the SC lays down guiding principles, it is difficult for a law to override it. Therefore, any new law will likely have to stand the test of the spirit of independence as interpreted by the SC. To be sure, the selection process has not entirely addressed concerns about CBI’s functioning, indicating that there is no substitute for structural and institutional reform.
In 1950, the country’s founders set up ECI to oversee the nation’s first general elections, and act as the spine of the world’s most fascinating democratic experiment. At a time when ECI has come under criticism from Opposition parties for seemingly partisan actions, the top court’s ruling opens a new era — for the body, and for democracy in India — but only if carried to its logical denouement.