Last week, the Supreme Court of India delivered a judgment that altered the appointment process for members of the Election Commission of India, the institution responsible for the integrity of the electoral process. The Commission consists of one Chief Election Commissioner (CEC), and since 1993, two additional Election Commissioners. Prior to this judgment, the executive — composed of the ruling political party — made all appointments to the Commission by itself, which compromised the ability of the Commission to raise doubts about the ruling regime’s electoral practices. In its recent judgment, the Court did away with the old appointment process, replacing it with a three-member body consisting of the Chief Justice of India, the opposition leader of the Lower House, and the Prime Minister.
In this Explainer, JURIST presents the stakes of the judgment, its reasoning, and its implications for the institutional allocation of powers.
The Court’s Reasoning
The Court’s reasoning is premised in constitutional history, the identification of a constitutional vacuum, and political parties’ exploitation thereof resulting in a constantly vitiated electoral environment.
The Court, evaluating the debates of the Constituent Assembly, holds that they strongly militate against vesting appointment powers solely with the executive. The Assembly, via its various sub-committees, was conscious of political appointments being a likely result of such a method, and debated extensively the institutional solution to securing the Commission’s appointment-based independence. Unable to arrive at a single solution, it called for Parliament to make a law on appointments at a later day, and created the system of executive-centric appointments as an interim measure. Parliament has not, however, made a law on appointments yet, which have continued to occur via a system intended to be interim.
This is where the Court identifies a vacuum:
- “…The vacuum in the case of Article 324 (2) is the absence of the law which Parliament was contemplated to enact.”
The Court holds that it is equipped to intervene and lay down guidelines when there exists a constitutional vacuum, relying on precedent where it did so to regulate the appointment of a premier investigation agency’s Director. The vacuum in the instant case, it notes, exists for structural reasons, since no party in power wishes to do away with its monopoly on appointments to a body meant to supervise it:
- “As long as the party that is voted into power is concerned, there is, not unnaturally a near insatiable quest to continue in the saddle. A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power.”
Since political parties, in their pursuit of power, are unlikely to strive to bolster the Commission’s independence, the Court notes that it must do so. The heart of the judgment lies in the Court situating itself in the political economy of our times, one where money wins elections, and the state’s tentacles are embedded deep into the media:
- “Criminalisation of politics, a huge surge in the influence of money power, the role of certain sections of the media where they appear to have forgotten their invaluable role and have turned unashamedly partisan, call for the unavoidable and unpostponable filling up of the vacuum [of the Commission’s independent appointments].”
Apart from its moral reasoning, it also offers a tightly-knit legal justification for its intervention. The right to vote, which is a manifestation of a citizen’s freedom to speech and entitlement for equal treatment, is materialized and ensured by the Commission. When the Commission fails in securing electoral integrity due to its structural incapacity, it constitutes both an institutional failure and a violation of citizen’s rights to free speech and equality. The institutional failure isn’t solely the Commission’s own, but is always accompanied by a transgression of fundamental constitutional values like the rule of law, equality and secularism, which constitute a part of the Constitution’s basic structure. On this basis, therefore, securing the Election Commission’s independence is identified as a constitutional mandate, and this judgement merely fulfils it.
Implications for the Institutional Allocation of Powers
The state, when arguing in Court, remarked that the Court must necessarily refrain intervention, for making law on appointments is a purely parliamentary prerogative. The judgement has also been received unfavourably by the ruling party, which has, with much banality, termed it “judicial overreach”. Some commentators have noted that the relief given by the Court, that of the three-member appointment committee, may not ultimately result in the Commission’s independence. This is because of the presence of a similar process for appointing investigative agency heads, whose failure is regularly discernible from their politically partisan actions. While the tangible effects of the three-member committee will be seen when the time comes for a new Commissioner’s appointment, the judgement doesn’t introduce much radical change to the institutional allocation of powers. A consensus among these three stakeholders concerning appointments is the ultimate relief granted, keeping intact executive presence, and creating parliamentary and judicial presence in the appointment process.
Within the limited choices before the Court, its decision offers meaningful relief to the Election Commission. Given its harsh remarks on the pitiful state of electoral health, the ball is now with the Parliament to confer the Commission with greater independence, and to further dissociate it from executive control.