A crucial ruling for fair elections

The Supreme Court has underlined the need for clean and credible elections by prescribing a new process for appointing the members of the Election Commission of India, including the Chief Election Commissioner. In the process, it has addressed some serious concerns that have been raised about the conduct of the Election Commission in the recent past. A Constitution Bench led by Justice K M Joseph has ruled that the appointment of EC members will be done on the advice of a committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha, and the Chief Justice of India (CJI), thus restricting the power of the government of the day to make the appointments. The order will hold good till parliament makes a law on the appointment as required under Article 324(2).

The bench has rightly observed that “a vulnerable EC would result in an insidious situation,” and that democracy can succeed only if all stakeholders work to maintain purity of the election process to reflect the will of the people. Since, as the court said, “a person in a state of obligation to the State cannot have an independent mind”, it is important that the appointment should reflect views beyond that of the government. The Opposition has as much stake in the election process as the government, and therefore should have an equal role in the EC’s selection. The CJI will provide a non-partisan dimension to the process. The Election Commission, which once enjoyed a high level of public trust, has come under severe criticism for its conduct and decisions which are seen to have favoured the ruling party at the Centre. This has been pointed out not only by the Opposition but by the media and independent observers. The EC has to be fair and independent and should be seen to be so. The new appointment procedure should be seen in that light.

The Supreme Court has in the past said that parliament should pass the enabling legislation for the appointment of Election Commissioners and if it did not do so, the court had judicial options. It has exercised that option now. What the court has done is to accept a proposal that the Law Commission had made some years ago. The procedure for EC appointments will now be the same as that for the CBI Director, the Central Vigilance Commissioner and the Central Information Commissioners. Even such a selection process will not be perfect and faultless, but the process will be more transparent and less arbitrary, and fitting for a democracy. Importantly, the court’s ruling and comments have rendered the current Election Commissioners virtually lameduck and morally obligatory for them to resign and enable the new appointment process to take effect.