The SC ruling aims to introduce an element of independence in the appointment of the CEC and giving an important role to the Leader of the Opposition in appointing the ECI, but previous experience have showcased that the Opposition’s objections in such committees are often overruled by the government.
In a historic judgement in the Anoop Baranwal vs Union of India case, on the 2nd March 2023, the Supreme Court of India modified the process of appointing members of the Election Commission of India (ECI). The five-judge bench unanimously ruled that a high-power committee constituting the Prime Minister, the Leader of the Opposition in Lok Sabha and the Chief Justice of India will replace the existing mechanism of appointing the Chief Election Commissioner (CEC) and the Election Commissioners (ECs). The move is seen as a bid to make the functioning of ECI more transparent, in light of the current allegations by several opposition parties of the ECI’s partisan dealings. The committee will be functional until Parliament enacts a law to govern the appointment process.
Independence in Appointing CEC and ECs: Why is it Important?
According to Article 324 (2), the President of India will appoint the CEC and ECs on the advice of the Union Cabinet. The constitution also mandates that the appointment should be in accordance with the provisions of any law enacted by the Parliament. However, no law has been passed on the same. Currently, the CEC and EC are indirectly appointed by the Union Government.
The ECI is the nodal decision-making body when it comes to elections to the Parliament and State Legislatures. The commission’s powers range from updating the electoral rolls to registering political parties, allocating election symbols, and demarcating territorial constituencies. Most importantly, the commission is mandated with conducting and supervising elections to the Parliament and State Legislatures. The absence of a law passed by the Parliament to appoint the CEC and EC leaves the entire process of selecting the members on the President and indirectly on the incumbent Union Government. Over the years, opposition parties have alleged ECI’s bias in favour of the incumbent party in making several decisions. The allegations are largely based on the Union government’s indirect role in appointing CEC and ECs.
Challenges to ECI’s Independence
Interestingly, this is not the first time that the ECI’s independence and functioning have come under scrutiny. The period after 1989 saw the emergence of coalition governments and the rise of regional parties in the Indian electoral space. A significant growth in political competitiveness imposed new demands on the ECI’s role as a neutral arbiter.
Under the United Progressive Alliance (UPA) government, none of the CECs completed their full six-year term. The period saw six CECs in a span of ten years. Between 2015 and 2022 when the BJP came to power, there have been seven CECs in just eight years.
In November 2022, the Supreme Court of India made a scathing observation on this, calling out governments for paying mere “lip-service” to the independence of the Election Commissioners, evident from the way the tenures of CECs “slid” down from over eight years in the 1950s to just about a few hundred days after 2004.
Opposition parties, including the Congress which led the UPA, have accused the incumbent NDA government of misusing its power by intervening in the functioning of quasi-judicial bodies, such as the ECI. The allegations primarily revolve around favourable decision making drive by appointments made without due diligence and largely influenced by political gains.
Previous Attempts to Reform Appointments to the ECI
This is not the first time that reforms have been recommended to the ECI. In 1975, the Justice Tarkunde Committee recommended that the members of ECI should be appointed by the President on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. The Committee on Electoral Reforms, formed in 1990 under the chairmanship of Law Minister Dinesh Goswami, recommended the effective consultation and its statutory backing with neutral authorities like the Chief Justice of India and Leader of the Opposition for appointments in the ECI.
The Second Administrative Reforms Commission, in its fourth report in January 2007, advised a neutral and independent body to recommend names for the ECI. The commission, under the Congress-led UPA government, suggested setting the UPA collegium headed by the Prime Minister, with the Speaker of Lok Sabha, the Leader of Opposition in Lok Sabha, the Law Minister and the Deputy Chairman of Rajya Sabha as its members to appoint the chief and members of the EC. At the time, the Bharatiya Janata Party (BJP), the principal opposition party welcomed this decision and L.K. Advani, BJP Parliamentary Party chairman at the time recommended the formation of a collegium comprising the Prime Minister as chairperson and the Chief Justice of India, the Law Minister and the Leaders of Opposition in the Lok Sabha and Rajya Sabha.
In stark contrast to its support for the decision at that time, this time around the BJP spokesperson, Gopal Krishna Agarwal, called the recent SC judgement to change the appointment procedure of election commissioners calling it a judicial overreach and against the explicit text of the Constitution of India.
On the other hand, the opposition parties expressed support for this decision, calling it a victory for democracy. West Bengal CM Mamata Banerjee claimed that the will of the people prevailed over the ill-fated attempts of the oppressive forces. The Congress, which was in power when several committees recommended reforms but none were taken up, welcomed the Supreme Court ruling, calling the prevalent method an opaque process that was misused by the ruling regime.
Will the SC Order bring Transparency to Appointments?
Time and again Opposition parties have accused the incumbent party in power of misusing government bodies for self-serving purposes. During the UPA regime from 2004–2014, the BJP often attacked the Congress party for misusing the CBI and the IT department for political gains. Similarly, opposition parties now, running from the TMC to AAP and the Congress have been attacking the incumbent BJP-led Union government for interfering in the working of independent bodies like CBI, Vigilance Commission and the ECI.
The SC ruling aims to introduce an element of independence in the appointment of the CEC and giving an important role to the Leader of the Opposition in appointing the ECI, but previous experience have showcased that the Opposition’s objections in such committees are often overruled by the government. Similar high-powered committees with legal backing appoint members to top bodies such as the CBI, Central Vigilance Commission, NHRC and the Lokpal amongst others. In the past, opposition members on these committees frequently expressed their disagreement, but the majority view was in the government’s favour.
The SC’s decision is likely to bring an element of transparency to the appointments, helping end the influence of the ruling party over the ECI. However, for substantial change in the way top functionaries to independent bodies are appointed, a well thought out law with explicit intention of ensuring free and fair democratic structure is the need
Ratika Khanna/ New Delhi
With inputs from Nelabh Krishna and Sahil Raj, Researchers at Polstrat
From Polstrat, a non-partisan political consultancy which aims to shift the narrative of political discourse in the country from a problem-centric to a solutions-oriented approach.