Upholding the autonomy of the Election Commission

Source– The post is based on the article “Upholding the autonomy of the Election Commission” published in The Hindu on 21st December 2022.

Syllabus: GS2- Appointment to various constitutional post

Relevance– Issues related to free and fair elections

News– The article explains the issue of appointment of Election Commissioners.

Recently, the Supreme Court of India heard a crucial case about the method by which the Election Commission of India is constituted, and Election Commissioners appointed. It has reserved its judgement.

What is the classical understanding of modern democracy?

According to the classical understanding of modern democracy, there are three wings of state: the legislature, the executive, and the judiciary.

The task of the Constitution is to allocate powers between these three wings, and to ensure that there is an adequate degree of checks and balances between them. Elections are believed to fall within the executive domain.

What has changed in contemporary times for modern democracy?

It is now commonly accepted that healthy constitutional democracies need what are known as fourth branch institutions or “integrity institutions”. The reason is that basic rights and guarantees cannot be effective without an infrastructure of implementation.

Take the example of the right to information. Without an infrastructure of implementation, the right to information will remain only a paper guarantee. We need an information commission that is adequately staffed and funded to oversee its on-ground enforcement.

These tasks involve elements of the judicial function as well as the administrative function. Therefore, it cannot only be performed by the judiciary but needs bodies such as commissions.

These institutions need to be functionally independent from the political executive. This is because they are the vehicles for implementing rights against the executive.

What are the practices followed by other countries?

South African and Kenyan Constitutions have dedicated constitutional provisions for fourth branch institutions such as Human Rights Commissions, Election Commissions.

The appointments process for such bodies normally involves multiple stakeholders from different wings of the state.

What is the case of India democracy?

The Indian Constitution also provides for such similar fourth branch institutions.The examples include ECI, CAG, UPSC. The Constitution goes to some degree to protect the independence of fourth branch institutions. But the problem is that the power of appointment lies exclusively with the executive.

Indian constitutional history as well points to the problem. The collegium system for the appointment of judges arose as a response to executive abuse and attempts to control the judiciary.

In the landmark Vineet Narain case, the Supreme Court held that the appointment of the CBI Director would have to be ratified by a three-member body that included the Prime Minister, the Leader of Opposition, and the Chief Justice of India.

The appointment process is difficult to create simply by judicial decree. It is something that needs political consensus, public deliberation, and, perhaps, a carefully crafted legislation.

Court must be careful to avoid band-aid solutions. One possible alternative is for the Court to put into place certain interim guidelines. It should leave a more permanent, structural solution up to the legislature.

It is for the Court to decide how best that might be achieved. But the guiding principles must be functional and effective independence from the executive, from the moment of appointment to the retirement.