Why the judiciary may not be the best selector of election commissioners

Source: The post is based on the following articles “Space, not time” published in The Hindu on 24th November 2022.

“Why the judiciary may not be the best selector of election commissioners” published in the Indian Express on 24th November 2022.

“Make a house call: EC does a great job holding polls. Let Parliament decide who should make appointments in EC” published in The Times of India on 24th November 2022.

Syllabus: GS – 2 – Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

Relevance: About SC questioning the appointment of election commissioners

News: The Supreme Court is hearing a case about the election commissioners’ (ECs) appointment.

What is the suggestion given by the Supreme Court in the appointment of CEC and Election Commissioners?

The court suggested a “collegium” type system in which the Chief Justice of India is a member.

What are the merits of SC’s questioning appointment of election commissioners?

Might ensure the security of tenure: Except Chief Election Commissioner (CEC), none of the ECs has the security of tenure that could provide them operational freedom and space. There is a good case for extending the same tenure security to the ECs too, regardless of what kind of appointment process is in place.

Ensure neutral appointments: Demands for bipartisan appointments to the Election Commission have been around for decades, but governments have seldom agreed. In the present case, the court might provide a way for neutral appointments to Election Commission.

Further, the shift towards a bipartisan, consultative appointment process would be desirable because that has been the larger trend of India’s legislative and democratic evolution in the past two decades.

Role of CJI in other institutional appointments: The CVC Act 2003 empowers a committee comprising the PM, CJI and the leader of the opposition to recommend central vigilance commissioners. These three also make recommendations for appointment to the Lokpal body and CBI director under the Lokpal Act 2013. So, the role of CJI in appointments is not new.

What are the counter-views about SC’s questioning appointment of election commissioners?

No need to question the appointments of ECs: Elections were held on time and there was no need to question the system of appointment. The court should only intervene if a challenge had been raised against any specific appointment of Election Commissioner.

Further, there is no abuse of power has happened in Election Commission like the malafide executive interference in pre-collegium era judicial appointments.

SC should question other serious challenges instead of appointments: In terms of maintaining the integrity of the electoral process, the case pertaining to electoral bonds is far more consequential than the question of the appointment of ECs. Further, electoral bonds will showcase the Court’s real commitment to the integrity of the electoral process.

Violate separation of powers: The role of the CJI in selection committees can be counterproductive, and it is like one constitutional body involved in the functioning of another body. This might create a view the court is violating the separation of powers.

The question of the best candidate is subjective: The role of the Election Commissioner is complex. So many of India’s independent institutions, judiciary included, might not function well if a search for good candidates is prolonged. In the end, structures of accountability matter more than the process of selection.

For instance, many ex-post heroes like T N Seshan, would have been disqualified on their prior reputations for political intrigue.

Brief tenures do not undermine independence: The CEC has a six-year tenure, but should demit office on attaining 65. The Court has questioned the practice of appointing CECs close to that age so that they have only a brief tenure. However, it may be argued that even Chief Justices have brief tenures, but that does not undermine their independence.

Ideally, political parties should arrive at a consensus and work out the EC appointment process in Parliament. SC has a point, but the Parliament should decide.