A 5-judge Supreme Court Constitutional bench recently proposed including the Chief Justice of India (CJI) in the committee that appoints Election Commissioners.
GS Paper 2: Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.
Analyze India’s supreme court judge selection process. Suggestions to prevent executive overreach into the judiciary (250 words)
- According to Article 324 (2) of the Indian Constitution, the Election Commission shall consist of the Chief Election Commissioner and such other Election Commissioners, if any, as the President may appoint from time to time.
- It specifies that, while the President will appoint the Chief Election Commissioner and Election Commissioners, this is subject to Parliamentary law.
- While this provision expects Parliament to draught a relevant law, such a law has not yet been enacted.
- In the absence of such legislation, the President has made appointments based on the Prime Minister’s recommendations.
- The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991 states that a CEC and Election Commissioners have a 6-year term or until they reach the age of 65, whichever comes first.
- Petition to reform the election commissioner appointment procedure: o In 2015, a PIL was filed in the Supreme Court contending 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.
- The PIL requested that the Court issue orders establishing an independent, Collegium-style system for ECI appointments.
- 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, thereby undermining independence “”wants to stay in power” and can appoint a ‘Yes Man’ to the position under the current system.
- The Bench also directed the Central Government to produce the file relating to the recent appointment of retired civil servant Arun Goel as an Election Commissioner in order to learn about the procedure that was followed.
- There was an application before the Supreme Court seeking interim orders against filling the vacant position at ECI. Thus, the Bench questioned how the appointment could have been made while an interim application seeking a stay on appointments to the ECI was pending.
- When the Centre argued that the Supreme Court could certainly investigate and overturn the appointment of an election commissioner if an unqualified person was chosen, the bench ruled that no qualification has yet been established for the post, so the issue of disqualification does not arise.
- Involving the CJI in the consultative process for the appointment of the Election Commissioner would ensure the poll panel’s “neutrality” and independence.
The position of the government on the issue
- In the absence of a law, the Centre used a time-tested convention to appoint the EC.
- A list of serving and retired officials in the position of Secretaries is compiled under this heading. Based on this, a list of names is being compiled for the Prime Minister and President’s consideration.
- After deliberating with the panel, the Prime Minister recommends one name to the President. A letter with the recommendation is sent to India’s President.
- Election Commissioners are appointed based on seniority, with the senior of the two ECs becoming the CEC.
- Within the executive domain: The Union government has defended the current appointment mechanism, citing the ‘honest record’ of all previous Chief Commissioners.
- It thus urged the Court not to intervene, arguing that the matter is within the purview of the executive and that it should respect the executive’s independence.
- Misplaced presumptions: The Centre held that the mere presence of a member of the judiciary on the panel for EC appointment would not ensure transparency and independence.
- Safeguards: According to the Centre, the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991 ensured the Election Commission’s independence in terms of salary and tenure for its members.
- These are inherent characteristics of an institution’s independence, and thus there is no “”trigger point,” which necessitates court intervention.
Arguments against the appointment of the CJI by the SC
- Risk of violating the doctrine of separation of powers: The role of the CJI in the selection committee can be counterproductive and violate the doctrine of separation of powers derived from Article 14 of the Constitution, which states that all three organs are equal in the eyes of the Constitution.
- Furthermore, the assumption that independence and fairness can be achieved only with the presence of the judiciary is an incorrect reading of the Constitution.
- Faulty assumption: The idea that the CJI can guarantee independence is incorrect. For example, the inclusion of the CJI on the committee that appoints the CBI director has not ensured the agency’s independence.
- Executives have a broad perspective: Selectors with broad rather than narrow social and institutional experience, which politicians and administrators are more likely to have than judges, help with character assessments.
- Misplaced narrative: When it comes to the political executive, the “judiciary neutral and virtuous,” “partisan and open to manipulation” narrative is dangerous for a democracy.
- Competing with the democratic head: Putting the CJI on selection committees where the Prime Minister sits is strange, especially given the Prime Minister’s democratic authority.
- As a result, in the event of a disagreement, it is unclear whether the CJI or an elected executive should take precedence.
- The composition of the appointment panel must be decided and debated by Parliament.
- So far, the judiciary has respected and kept an arm’s length distance from the Election Commission; there is no reason to change that.
- The Election Commission has earned public trust through its exemplary performance as an independent and neutral constitutional authority, whose autonomy is guaranteed by the constitution and whose operation is free of interference from the executive and judiciary.
- It is one of the most enduring success stories of Indian democracy. As a result, the ECI must stand firm in the face of political executive overreach.