The framers of the Constitution had left it to the wisdom of Parliament to put in place a proper mechanism for the selection and appointment of people to run the Election Commission of India, mandated with the responsibility to conduct elections to the legislatures in a fee and fair manner
The President of India’s order appointing election commissioner Gyanesh Kumar as the chief election commissioner of India puts into effect the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, but the midnight communication has not abated the legal challenges mounted against the piece of legislation.
The framers of the Constitution had left it to the wisdom of Parliament to put in place a proper mechanism for the selection and appointment of people to run the Election Commission of India, mandated with the responsibility to conduct elections to the legislatures in a fee and fair manner. It was in 1991 that Parliament passed the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act which made it a multi-member panel but the selection process remained with the executive. The Supreme Court, in 2023, found the process flawed and put in place a panel comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India to recommend names to the President for appointment as CEC and ECs. The court reasoned that the “founding fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission”. The apex court also cautioned that a “pliable election commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power”.
The 2023 law that followed the Supreme Court order retained the three-member panel but replaced the CJI with a minister to be nominated by the Prime Minister. It also provided for a search panel, led by the Union minister for law and justice and comprising two other members not below the rank of secretary to the Government of India, which will “prepare a panel of five persons for consideration of the selection committee” for the appointment.
The law put the entire process back exclusively in the domain of the executive — a three-member search committee led by a minister and a three-member selection panel where the Prime Minister and a minister of his choice are present, in all probability, can zero in on a person of the choice of the Prime Minister, given that ministers continue in the office during the pleasure of the President who acts on the advice of the Prime Minister. The process practically banishes whatever transparency and fairness the apex court wanted to introduce in it.
The question is fairly simple: Should the selection process remain exclusively with the executive, given that the fairness of the Election Commission has been questioned more strongly and frequently of late? The executive is mandated with the power to run the country on a day-to-day basis and to take policy decisions; the question is whether it should be solely left to its judgment to pick people who oversee a process that decides who gets to run the executive. The Supreme Court is seized of the question again, and is expected to soon hear petitions challenging the validity of the 2023 law that supersedes the court’s recommendations. The selection process could have waited, as the Leader of the Opposition has pointed out in his dissent note to the selection committee. It is now back to the apex court to decide once and for all.
