The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President — Article 324(2)
Have you ever played street cricket? In the street cricket I played, we used to have an interesting rule — that the Umpire is from the batting team. This batting team umpire, obviously my friend, helps me often. If there are close run-outs, he would say that I reached the crease just on time, as if he has an inbuilt slow-motion camera in his eyes. If I get out in a tough situation, his left hand would magically be up declaring that ball as a “No Ball”. He would obviously not dare to say a boundary is a sixer. But, whenever there is a chance to help, he will.
The other team, when they come to batting, will do the same again. They feel that the previous team took unfair advantage of the batting umpire arrangement. So they get convinced to take advantage again. Even if a batting umpire tries to be fair, no one would believe him truly. And as a result of this arrangement, there are often fights.
Unfortunately, Indian elections are conducted like street cricket. The Chief Election Commissioner (CEC) is the batting team umpire of this game, selected by the government, the batting team. The next government feels that they should also have their batting umpire and the elections of this great democracy are conducted like street cricket.
If we read Article 324 (2), we understand that the President is supposed to appoint the CEC. But, the President of India cannot take her own decisions. She should be guided by the Union of Ministers, headed by the Prime Minister. So essentially, the batting teams select their own umpires every time.
Thankfully, the Supreme Court of India (SC) tried to reform the game rules a little. The SC ruled that the CEC shall be appointed by a committee of the Prime Minister + Leader of Opposition + Chief Justice of India. Basically, both the teams + a grandpa overlooking the game from his balcony together would decide who the umpire is. This can make the umpire impartial, independent and effective.
The independence of the umpire/CEC is reducing over the years. Government officers are given this post after their retirement. One way to reduce the effectiveness of the Election Commission is by cutting down the tenures of the CEC. We can see that the tenures of CECs is reducing consistently over the years.
The Supreme Court observed that the appointment of a CEC for a tenure less than of 6 years is a clear breach of law. We can see that there were only 3/25 CECs so far had a tenure of more than 6 years. These are Sukumar Sen, the first CEC who conducted the first general elections in India; Kalyan Sundaram, the second CEC; T.N.Seshan, the 10th CEC who cleaned the Indian electoral system by implementing the Voter ID system. Even in the recent judgement, SC cited the role played by Seshan as an impartial CEC.
The data and codebooks are here: GitHub
Debate
Many commentators criticised and even vilified the Supreme Court and the Chief Justice of India for this judgement. Their arguments are as follows:
The SC overreached with this judgement. There is no scope in Article 324(2) for the SC to create such a committee.
The appointment of judges within SC is not transparent. The SC trying to reform the Election Commission appointments is hypocrisy.
Let’s handle these points one by one.
Yes, there is a case for Judicial overreach. But the Indian judiciary has the ability to creatively interpret the provisions of the constitution, in service of constitutional values and democracy. The SC has done this creative interpretation time and again to protect the environment, social justice and democracy.
The SC interpreted that the President should appoint a CEC subject to any law made by the Parliament. But the Parliament, under successive governments, in the last 75 years, failed to make any such law. The Law Commission of India and the Dinesh Goswami Committee also recommended that the Parliament make a law that makes CEC’s appointments more transparent and just. The successive governments just did not care for these as an independent CEC can be painful for any incumbent government. And thus a vacuum is created. The SC is just filling that vacuum through creative interpretation.
SC’s creative interpretation of the constitution in no way removes Parliament’s ability to make a law on the same subject under 324(2). If the government really wants no involvement of the Opposition and CJI in the appointment of CEC, it can well make a law in the Parliament - it has the numbers to do that. But, do you want it? Do you want the umpire to be selected by one of the players? Is it not better if both teams together select the umpire for a fair game?
This is a fair criticism. Yes, the judicial appointments are not transparent and just. Judges selecting judges is as bad as governments selecting the CEC. To avoid the remarks of hypocrisy, it is better if the expedites constitution of the National Judicial Appointments Commission (NJAC). Many committees have recommended this as well and the SC cannot delay it for long if it has to play a proactive role in other spheres of India’s political life.
What do you think about this judgement by the Supreme Court? Please comment your option
I feel that it is a positive case of Judicial activism in the country. There would have been no need for it had the governments done their job before. Electoral reforms are the most crucial reforms for India — corruption, black money, crime etc., can all be addressed by reforming the electoral system. And throughout history, governments were not forthcoming in bringing electoral reforms. Thus, I welcome the SC’s activism in this regard.
Jai Hind!