Why Top Court’s Order on Election Watchdog Appointments is Historic

A constitutional bench of the Supreme Court delivered a unanimous order on Thursday with profound implications. It has ruled that a committee of the Prime Minister, Leader of Opposition in the Lok Sabha (or leader of the largest Opposition party) and Chief Justice of India would henceforth select persons for appointment by the President of India as election commissioners and the Chief Election Commissioner (CEC).

The Bench, headed by Justice KM Joseph and consisting of Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, includes a separate concurring order by Justice Rastogi, which raises additional points about the security of tenure of election commissioners and the CEC. The judges have decided that their order would be operational until Parliament passes a law as per Article 324(2) of the Constitution, according to which the CEC and election commissioners shall be appointed by the President “subject to the provisions of any law” passed by Parliament.

The order is historic in every sense of the term, as it takes the appointment of election commissioners and CECs away from the exclusive domain of the Executive. Thus, it safeguards the independence of the Election Commission of India (ECI). Article 324(1) vests the ECI with the superintendence, direction and control of the preparation of the electoral rolls and the conduct of all elections to Parliament, State legislatures and the President and Vice President.

The judgement thus fills the void caused by the Parliament not having passed any law under Article 324(2). Since 1952, political parties have formed governments with the people’s mandate but never even introduced a bill on such a law. The Constituent Assembly had expressly mentioned such a law in the Constitution. The Supreme Court on Thursday expressed anguish over this void. Its order reads, “Article 324 has a unique background. Several decades have passed by.

Political parties of varying hues have not introduced a law. A law cannot be the perpetuation of what is existing, of the Executive having an absolute say in appointments. There is a lacuna, as the petitioners have pointed out. Political parties would have a reason to not seek a law, which is clear to see. A party in power will have an insatiable quest to remain in power through a servile Commission.”

The apex court referred to a “servile commission” on Thursday, 73 years after the Republic of India was established. We must not forget that several Constituent Assembly members and the Drafting Committee Chairman, Dr BR Ambedkar, had raised this very concern. During a discussion on 16 June 1949 on Article 289 of the draft Constitution (which corresponds to Article 324 of the Constitution) about the Election Commission, Ambedkar said there was no provision “against the nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioner”.

He candidly conceded the absence of a provision in the Constitution to prevent “either a fool or knave or person likely to be under the thumb of the Executive” from accepting these positions. He said, “I do want to confess that this is a very important question, and it has given me a great deal of headache, and I have no doubt about it that it is going to give this House a great deal of headache.”

Ambedkar’s apprehension that election commissioners and the CEC could come under the “thumb of the executive” resonates with the Supreme Court’s expression, “servile Commission”.

But it was not just Ambedkar. Other members of the Constituent Assembly had expressed serious apprehensions that despite the intent to establish an independent Election Commission in the Constitution, it would be subordinate to a government of the day.

Consider Prof Shibban Lal Saksena’s statements in the Constituent Assembly on 15 June 1949 during the discussion on Article 289 in the draft Constitution. He said, “It is quite possible that some party in power who wants to win the next election may appoint a staunch party man as Chief Commissioner.” He said there might not be another prime minister like Jawaharlal Nehru, known for his independence and impartiality, and someone might abuse that office by appointing an unworthy CEC, causing havoc in the electoral process.

We can recall another distinguished member’s words in the Constituent Assembly, Hriday Nath Kunzru. He said on 16 June 1949, while discussing the Election Commission, that if the electoral machinery is defective, inefficient or run by people of doubtful integrity, “democracy will be poisoned at the source”. He warned that instead of learning how judicious use of their vote can reform the administration, people must not end up learning how to get what they want through intrigue and unfair means.

But these concerns of those who framed the Constitution that the Election Commission might get compromised despite providing expressly for independence remained unaddressed for decades. Even more distressingly, the Law Commission recommended in 2010 that a committee consisting of the Prime Minister, the Leader of Opposition and the Chief Justice of India should select candidates for appointment as election commissioners and CECs—still no government drafted such a law.

All this makes Thursday’s Supreme Court order a crucial step in fulfilling the intent of the Constituent Assembly to ensure election commissioners and CECs do not come under the “thumb of the executive”.

On 16 November 2022, there was an unfortunate controversy regarding the 24th CEC of India, Sushil Chandra and two Election Commissioners, Rajiv Kumar and Anup Chandra Pandey. After receiving a letter from the Union Law Ministry that the CEC is expected, they attended an online interaction with the Prime Minister’s Principal Secretary. It was widely reported as one demonstration of an independent institution falling to Ambedkar’s apprehensions 72 years after his warning.

Hopefully, this historic judgement will end the domination of the Executive over the ECI. Of course, we still have to see how the order is operationalised to ensure free and fair elections and the integrity of the electoral process.

The author was Officer on Special Duty to former President of India KR Narayanan. The views are personal.