The Supreme Court on Tuesday zeroed in on the appointment of serving bureaucrats as Chief Election Commissioners and Election Commissioners, suggesting that it compromises the independence of the poll body. A five-judge Bench headed by Justice KM Joseph hearing petitions seeking reform in the appointment of the Election Commissioners lamented the absence of checks and balances in the present system of appointments, emphasising that fair and independent elections are the bedrock of democracy, and those conducting them ought to be persons of character, capable of resisting pressure.
Asserting that the Chief Justice of India ought to be associated with the selection process of Election Commissioners, the five-judge bench went on to praise former CEC, the late T N Seshan. The court noted that the Constitution under Article 324 had envisaged a law to provide the procedure for such appointments, but for 70 years the ‘silence of the Constitution is being exploited by all.’ Also, the short term of CECs due to compulsory retirement on their attaining the age of 65 years ‘thwarted’ their independence. It noted that no CEC had completed the full six-year term since 2004. Between 1950 and 1996 only ten CECs were appointed whereas in the subsequent 26 years there have been as many as 15 CECs.
Significantly, the Attorney General of India opposed any change the current system of appointment of the CEC, saying it was working well. And he politely reminded the court about the cardinal principle of the separation of powers which cannot be challenged. The court can scrutinise violations of fundamental rights, but it need not encroach on the domain of the executive and Parliament. Of course, these were oral remarks from the Bench. The matter is to be heard again and hopefully the court will then express a more considered opinion, because some fallacies in the arguments from the Bench were obvious. For one, it is common knowledge that Mr Seshan in his long bureaucratic stint before being appointed CEC was far more subservient to political authority than his “bulldog” act as CEC would suggest. Two, and more important, in 46 years up to 1996 there may have been only 10 CECs but their long tenure did not guarantee an independent poll body. Indeed, till then, the EC more or less worked as an extension of the Law Ministry. There has been a great deal of transparency in its working in recent years due to principally two factors: greater competition in the political sphere and, two, the watchdog role the mushrooming growth of regional and national media has come to perform in highlighting infringements of the poll code. Besides, the remedy suggested by the bench that CJI be part of the selection process of CECs and ECs, experience has shown, is no guarantee of their independence.
It cannot be anyone’s case that since the CJI is part of the three-member selection panel for picking the CBI director the premiere investigating agency has become free from governmental control. Let us face it. The election process now is far more independent and fair than it was in the previous decades. The use of technology too has played its part in making the process more transparent. Ultimately, a vigilant electorate is the greatest guarantee against rigged elections. The court should avoid altering the current appointment process of CECs in a hurry.