The Union government’s introduction of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in the just-concluded monsoon session of the Parliament has caused significant controversy. A large part of the discussion is focussed on the fact that the bill replaces the mechanism for selection of the Chief Election Commissioner (CEC) that was devised by the Supreme Court in Anoop Baranwal vs Union of India, a verdict delivered a few months ago. In that order, the Supreme Court held that the selection of the CEC must be done by a three-member committee comprising the Prime Minister (PM), the Leader of Opposition, and the Chief Justice of India (CJI). The Election Commissioners bill replaces the CJI with a cabinet minister nominated by the PM. Criticism of the bill has thus centred on how it undermines the apex court’s judgment, whereas its defenders have pointed to the fact that the top court itself noted that the arrangement it was setting up was temporary, until Parliament passed a law in this regard.
But by focussing on the presence — or absence — of the CJI in the selection committee, this debate misses the point. The primary focus of the Anoop Baranwal judgment was not on who, specifically, should be on the selection committee for the CEC, but on ensuring the structural and operational independence of the Election Commission of India (ECI). Article 324(2) of the Constitution vests the power of appointment of the CEC in the President, subject to any law that Parliament might make. In Anoop Baranwal, the top court examined the history of this provision, and found that the intention of the framers of the Constitution was to provide a stop-gap arrangement, in the expectation that Parliament would soon enact a law that would secure and guarantee the independence of ECI. However, the expectations of the framers were belied, as Parliament never passed a law. This effectively made the President’s (i.e., the executive’s) powers permanent. The top court then found that giving the executive the power to appoint the CEC was incompatible with the independence of ECI, and, therefore, contrary to both the intention of the framers, and the design of the Constitution. The reason for this is obvious: In a parliamentary system, the executive is drawn from the ruling party, and is, hence, a player in the electoral game. Giving the executive the power to appoint the CEC, therefore, is akin to giving a player the power to appoint the referee.
In constitutional democracies, election watchdogs belong to a set of bodies known as fourth branch institutions, comprising bodies such as election commissions, information commissions, and so on. Their primary task is to effectively oversee and implement the infrastructure that is needed to make civil rights effective (such as the right to vote, the right to information etc). In order to achieve this goal, these fourth branch institutions must be effectively independent of the executive, as one of their roles is to check executive overreach.
This insight is at the heart of the Anoop Baranwal verdict. The reason why the top court held that its three-member committee was an interim arrangement is that the Constitution itself makes clear that the ultimate authority for enacting a law with respect to ECI lies with Parliament; however, as the court also noted, this is not a boundless, or unchecked, authority. Any law that Parliament passes must be consistent with the requirement that ECI be at an arm’s length from, and independent of, the executive. Thus, the problem with the Election Commissioners bill is not that the CJI has been replaced; but rather that, in the new regime, the executive has a clear majority — and, therefore, a decisive say — in the appointment of the CEC.
A look at the practice from around the world makes it even clearer that India is an outlier in this regard. In most democracies, the mechanism for appointing the election commission is non-partisan, and has multiple stakeholders: Examples include the requirement of ratification by two-thirds of Parliament, or a multiple-member committee comprising ministers, the Opposition, civil society members, and so on. What unites all of this, however, is a determination that there should not be executive dominance in the selection of the election commission. Consequently, it is imperative to reframe the debate from the exclusion of the CJI to ECI’s independence. And it is imperative for Parliament and civil society to work together on crafting a mechanism for appointments that will ensure ECI’s independence, regardless of the party in power.
Gautam Bhatia is a Delhi-based advocate. The views expressed are personal
