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Should the Chief Justice of India have a say in the appointment of the Chief Election Commissioner and Election Commissioners in India?
The Supreme Court in Anoop Baranwal v Union of India seems to think so. The Union Government in the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (EC Bill) seems to think otherwise.
The EC Bill, in my view, takes the right approach.
What Does the Bill Try to Achieve?
The EC Bill seeks to streamline and codify the process of appointment of CECs and ECs. A search committee headed by the Cabinet Secretary prepares a list of five among those with integrity, knowledge of and experience in the management and conduct of elections.
However, the pool of people eligible to be considered are only among those who hold a post equivalent to the rank of Secretary to the Government of India. The names are then sent to a selection committee consisting of the Prime Minister of India, the leader of Opposition in the Lok Sabha and a cabinet minister nominated by the Prime Minister. The final appointment is made by the President based on the Selection Committee’s suggestion.
As of today, there is no law that prescribes the procedure for the appointment of CECs or ECs. Under Article 324, until a law is made, it is the prerogative of the President, acting on the aid and advice of the Union Cabinet, effectively the Union Government alone.
The Constitution, however, does not prescribe a particular method for the appointment of CECs or ECs and says that a law be passed on this issue at some time but does not say what that law should look like.
The EC Bill is therefore an effort to put the process of appointment down in law.
Nothing in the process of appointment of ECs as it happens or proposed to happen under the EC Bill directly violates the text of the Constitution in any way. The objection being taken against the EC Bill (in so far as the appointment process is concerned) is that by not including the Chief Justice of India in the Selection Committee, the Bill is contrary to the Supreme Court’s decision in Anoop Baranwal and in some way harming the conduct of free and fair elections.
Anoop Baranwal — A Contradictory and Incoherently Reasoned Judgment
While the overall directions of the Anoop Baranwal judgment are clear - till a law is made appointment of CEC and EC should be recommended by a committee headed by the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India - it is entirely unclear on what basis it says so.
The court at no point holds that the appointment of CECs and ECs by the Union Government is unconstitutional (it cannot since that would go against the text of the Constitution) nor does it state categorically that some circumstance has changed, and the existing process would be unconstitutional.
At best one can say that the court thinks the procedure proposed is desirable - but it never fully explains why it believes that CJI should be part of the process.
The court points to certain reports in the past - such as the Goswami Report of 1990 and the Law Commission Report of 2015 which had recommended the inclusion of the CJI in the process of appointment.
However, equally, the report on the National Commission for Reviewing the Working of the Constitution makes no mention of the CJI in the proposed appointment committee for ECs. Almost all the reports do suggest that the opposition be party to the process in some way.
It is also not obvious why the CJI should be involved in picking the CEC and ECs. The work of the election commission is largely management and organisation of Union and State elections which do not necessarily involve the kind of skills a judge would be able to assess.
Even though the CJI is involved with the appointment of the heads of certain institutions like the Central Bureau of Investigation, there’s no role to be played for the CJI in the appointment of the head of equally important institutions like the Central Vigilance Commission or the Right to Information Commission.
The involvement of the CJI can therefore not be justified either on constitutional norms, conventions or even pragmatic concerns.
Independence of an Institution is Not a Mathematical Outcome
However, the idea that the appointment process largely determines the independence of an institution has plagued discourse in India. This idea has dominated the discussion on appointment of judges to the higher judiciary where the collegium system’s ability to ensure independent judges of the High Courts and the Supreme Court is deeply in question.
The independence of an institution should be measured ideally on the work and impact of the institution - it is not the automatic result of the process of the appointment.
Whatever one may say about the personal qualities of individual election commissioners the undeniable fact is that elections in India have by and large been free and fair since independence not just by the standards of South Asia, but the world.
Incumbent governments have been voted out repeatedly at state and union level and though much needs to be done to improve, the faith of the ordinary citizen in the process can be seen in the increasing turnouts over the decades and the competitive nature of the elections.
All of this should serve as a reminder that the independence of an institution is not a mere mathematical outcome of the process followed in appointing the head. It is a much more complicated set of factors that, and it would be wiser to rid public discourse of this obsession with appointment processes.
(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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