To select independent ECs, look beyond the CJI

In June 1949, B R Ambedkar told the Constituent Assembly that the method of appointing election commissioners had given him “a great deal of headache”. Security of tenure, he said, would mean little if the Constitution could not prevent the appointment of “a fool or a knave or a person who is likely to be under the thumb of the Executive”. Nearly eight decades later, the headache has returned: how far must the appointment process be insulated from the government of the day?That issue underlies the Supreme Court’s September 23 split in Dr Jaya Thakur v Union of India, which challenges the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. Section 7 places the Prime Minister, the Leader of the Opposition (LoP), and a Union Cabinet minister nominated by the Prime Minister on the selection committee. When the two government members agree, the Opposition member cannot prevent their choice from prevailing.Justice Dipankar Datta observed that the LoP could consequently become “largely ornamental”, while Justice Satish Chandra Sharma considered the resulting constitutional issue one that Anoop Baranwal v Union of India had not answered. Their disagreement over Article 145(3) has receded in practical importance because both asked the Chief Justice of India (CJI) to consider constituting a Constitution bench, placing the substantive issue before a larger bench.’Ek kachaudi, do samosa, kaise kare desh bharosa’: CEC must quit and Bihar polls be held afresh, says Tejashwi Anoop Baranwal confronted a system in which ECs were appointed based on executive advice because Parliament had never enacted the law contemplated by Article 324(2). The five-judge bench prescribed a committee comprising the Prime Minister, the LoP, and the CJI, expressly as a temporary arrangement until Parliament legislated. Its reasoning repeatedly addressed appointments remaining in the “sole” or “exclusive” hands of the executive, without holding that the CJI must permanently occupy the third seat or that Parliament could never give the government a numerical majority.Because neither proposition was decided, an important gap remains: it takes no constitutional interpretation to see that two votes defeat one and that the government can carry the selection without the Opposition member’s concurrence. What requires five judges is deciding whether that assured voting power is compatible with the neutrality and independence expected of the constitutional body supervising elections in which the incumbent government is itself a contestant.In 1995, the Supreme Court confronted a different version of this anxiety in T N Seshan v Union of India. Chief Election Commissioner (CEC) Seshan challenged the appointment of M S Gill and G V G Krishnamurthy as ECs, alleging that the government had enlarged the Commission to sideline him. A five-judge bench rejected the premise that the two commissioners should be assumed to “join hands” against the CEC. It upheld the multi-member Commission, treated majority decision-making as consistent with democratic principle and refused to reduce the other commissioners to ornamental positions.That reasoning cautions against equating a numerical majority within the Commission with executive capture because, once appointed, its members hold constitutional office and are expected to exercise independent judgment. ECs Sukhbir Singh Sandhu and Vivek Joshi, both appointed under the 2023 regime, reportedly recorded objections on at least 14 occasions over 10 months. The Commission has said the notes formed part of its deliberative process and that final decisions were unanimous. Those disputes illustrate why the method of appointment cannot automatically predict later conduct.Indian law offers no single model for insulating public institutions from the appointing government. The Chief Information Commissioner is selected by the Prime Minister, the LoP, and a Cabinet minister nominated by the Prime Minister, while the Central Vigilance Commissioner is selected by the Prime Minister, the Home Minister, and the LoP. In each committee, two of the three members belong to the government.The CBI Director, by contrast, is selected under Section 4A of the Delhi Special Police Establishment Act by a committee comprising the Prime Minister, the LoP, and the CJI or a Supreme Court judge nominated by the CJI. The Lokpal uses a five-member committee that also includes the Lok Sabha Speaker and an eminent jurist, supported by a statutory search process.’We will take a call’: Supreme Court to examine plea for recall of split verdict on law governing appointment of CEC, ECsThese designs show that Parliament has used different degrees of diffusion for appointment power. In Common Cause v Union of India, concerning the CBI Director, the Supreme Court described the post-2013 arrangement as going a step further in insulating selection from government influence. The Alok Kumar Verma litigation also showed why appointment is only one component of autonomy.Beyond labels of autonomyThe Election Commission cannot be made independent by selection arithmetic alone, since appointment, security of tenure, removal protections, collegial decision-making, and transparency work together. That task should not be reduced to deciding whether the CJI must return to the committee. If Article 324 demands an element of neutrality outside the government, the Constitution bench must explain what that means. It could consider whether the government must obtain the concurrence of at least one selector who is neither part of nor nominated by the executive, while leaving Parliament room to choose the institution or office-holder supplying that safeguard.Replacing the Cabinet minister with the Lok Sabha Speaker or the Rajya Sabha Chairman may appear to introduce a more neutral member, but it could leave the ruling side with the same practical majority because both offices are themselves filled through parliamentary majorities. The Court would have to define neutrality in terms of genuine independence from the government’s choice, rather than merely the institutional title of the third selector.The next Constitution bench should therefore formulate a durable principle rather than constitutionalise one temporary arrangement. It should decide whether Article 324 permits the government to carry an appointment without the concurrence of any selector outside government and, if it does not, define the minimum non-government safeguard that Parliament must preserve. That would fill the gap left by Anoop Baranwal without converting the CJI’s interim presence into the only constitutionally permissible model.The writer is Contributing Editor, Supreme Court Observer.(Disclaimer: The views expressed above are the author’s own. They do not necessarily reflect the views of DH.)

Source: Deccan Herald