SC’S ECI order will help, but it’s not a magic wand

Last week, the Supreme Court (SC) ruled that the appointment of election commissioners (ECS) must be made on the advice of a committee comprising the Prime Minister, the Leader of the Opposition (LOP), and the Chief Justice of India (CJI). This decision is a significant step towards ensuring the impartiality and independence of the Election Commission of India (ECI), which is an essential pillar of India’s democracy. As a former chief election commissioner, I believe this landmark decision will strengthen ECI’S functioning and enhance public trust in the electoral process. ECI is responsible for conducting free and fair elections and ensuring they are conducted impartially and transparently.

The SC’S decision comes in response to four writ petitions challenging the system of appointment of ECS unilaterally by the executive. The petitioners argued that this practice compromised the independence of ECI and made it susceptible to political interference. The court agreed with this argument. Including LOP in the committee is a crucial element to ensure that the appointment of ECS is not subject to the whims and fancies of the ruling party alone. Moreover, this move aligns with the principles of the checks and balances fundamental to a robust democracy.

It is important to note that ECI is widely regarded as one of the world’s most credible and impartial electoral bodies. This is mainly due to the independence and integrity of its members. However, on many occasions, questions have been raised about the fairness of its actions. With the SC’S decision, ECI can continue its work with renewed confidence, knowing it has a universal acceptance across party lines.

The unanimous verdict of the five-judge Constitution Bench is a significant step towards enhancing the credibility and integrity of the electoral process. Furthermore, this decision reinforces the independence of ECI and safeguards it from government interference.

What will be the response of the government? The government’s top lawyers had vehemently opposed the petitions and argued that the system was working well all these years and acquired international prestige; and so, where is the need to tinker with it? The counterargument is that hoping the system will work well in the future is not a pragmatic solution. Hope is not a strategy. There have to be systemic checks in place.

Many people ask whether the government will implement this decision and bring a bill in Parliament. I am optimistic that the government will accept the verdict gracefully and implement it. Until an act is passed, the SC’S norms have to be applied. Hopefully, the act will consider electoral reforms in all its dimensions, including the protection of commissioners from removal, as provided for CEC.

The kind of collegium suggested is not new to the country. Appointments to the National Human Rights Commission, Central Vigilance Commission, and Central Information Commission are made on the collegium’s recommendation. And these have been free from any controversy.

The court examined the practice in several countries, each of which had a bipartisan system of selection of ECS. In some countries, a select committee of parliament oversees the appointment. In some, parliament debates the names. In some others, this debate or interviews of the candidates are nationally televised. India is the only country in the democratic world where ECS are appointed unilaterally by the incumbent government. Article 324 (2) of the Constitution stipulates that the President will make these appointments according to the law the Parliament may pass. Yet, after seven decades, the law is nowhere to be seen.

Is there a guarantee that those appointed through the collegium system would be free from the pressure or influence of the government? Surely there is no guarantee. But appointments by consensus will undoubtedly enhance the institution’s credibility in the public’s eyes. Moreover, Opposition leaders will not be able to criticise the decisions of ECI since LOP will be involved in the selection process.

However, one must admit that the verdict cannot be a magic wand. After all, legal experts have viewed many SC judgments with suspicion and questioned them.