Context
A Supreme Court Constitutional Bench has reserved its decision on the method by which the Election Commission of India (ECI) is formed and Election Commissioners (EC) are appointed. The article discusses fourth branch institutions, their importance, how these institutions function in India, and the issue of ECI independence.
Relevance
GS Paper 2: Constitutional bodies
Mains Question
The role of the Election Commission of India in ensuring the purity of the country’s elected legislative bodies has instilled a high level of trust in the minds of Indian citizens. Examine critically. (250 Words)
Institutions of the fourth branch and their significance
- The legislature, executive, and judiciary are the three wings of the state, according to the classical understanding of modern democracy.
- The Constitution’s task is to allocate powers among these three wings while also ensuring an adequate level of checks and balances.
- Traditionally, bodies dealing with administrative and implementation issues (such as elections) were thought to fall under the executive domain.
- However, in today’s world, healthy constitutional democracies require what are known as “fourth branch institutions” (or integrity institutions) to provide an infrastructure for the implementation of citizens’ basic rights.
- For example, the right to information, which is a feature of most modern constitutional democracies, is only a paper guarantee in the absence of an implementation infrastructure.
- As a result, it is critical to ensure that these fourth branch institutions are functionally independent of the political executive, as they are the vehicles for enforcing rights against the executive.
Institutions of the fourth branch in the Indian context
- In India, the fourth branch institutions are established by either the constitution or by law. Election Commission, Lokpal, CAG, Public Service Commission(s), etc. are mandated by the constitution, whereas CBI, NHRC, RBI, and others are mandated by law.
- While the Constitution protects these institutions’ independence to some extent, the power to appoint officials to these institutions rests solely with the executive.
- For example, recent government control over appointments to the Central Information Commission has resulted in it becoming largely toothless and ineffective, ultimately leading to the defeat of the right to information.
- Similarly, the executive has sole authority over the appointment of Electoral Commissioners (formally, the President of India acting on the aid and advice of the Council of Ministers).
- As a result, the government decides who gets to run fourth-branch institutions. This is why, in the landmark Vineet Narain case, the Supreme Court referred to the CBI as a “caged parrot.”
ECI and a petition to change the appointment procedure
- Article 324 (2) of the Indian Constitution states that the Election Commission shall be composed of the Chief Election Commissioner and such other Election Commissioners as the President may appoint from time to time.
- Their appointment is subject to legislation passed by Parliament. However, no such legislation has yet been enacted.
- In the absence of such legislation, the President has made appointments based on the Prime Minister’s recommendations.
- Petition to reform the EC appointment procedure: o In 2015, a PIL was filed in the Supreme Court alleging that executive appointments to the ECI have eroded its independence over time.
- It claimed that the current appointment system is unconstitutional because it violates Article 324(2) of the Constitution.
- In 2018, the Supreme Court referred the PIL to a five-judge Constitutional bench for authoritative adjudication.
Observations of the SC on the procedure for appointing an EC
- In the absence of a law to oversee such appointments, the Indian Constitution’s silence is being exploited.
- The government ensures that the person nominated does not serve the full six years by selecting someone close to 65, undermining independence.
- Under the current system, any ruling party at the Centre that “likes to perpetuate itself in power” can appoint a “Yes Man” to the post.
- The bench also proposed including the Chief Justice of India (CJI) in the committee that appoints Election Commissioners to ensure the poll panel’s “neutrality” and independence.
The way forward
- While the current system, in which the executive has absolute power over ECI appointments, is unsatisfactory, historically problematic, and harms the rule of law, the Court must be careful not to rely on band-aid or stop-gap solutions.
- The court can chart a possible alternative by issuing a suspended declaration of invalidity, which is a remedy in which the Court imposes certain interim guidelines while leaving a more permanent, structural solution to the legislature.
- An Independent Institutions Bill should also be enacted to ensure the credibility and fairness of the fourth branch institutions, with the following goals in mind:
- Bipartisan appointments
- Operational impartiality and independence
- Accountability to the legislature as opposed to the executive
Conclusion
- Almost no constitutional democracy in the world gives the political executive sole authority to staff a body as important to democracy’s survival as the Election Commission.
- Appointment processes involve the government, opposition, independent experts, and judicial experts in such a way that no single centre of power has dominance or veto power.
- However, in order to craft a viable appointments process, political consensus, public deliberation, and carefully crafted legislation are required, rather than a single judicial decree.
