The Supreme Court’s latest verdict in response to pleas filed by Association for Democratic Reforms and Congress leader Jaya Thakur—seeking a stay on the recent appointment of two poll commissioners under the Chief Election Commissioner and Other Election Commissioners Act, 2023—has reassuringly settled the legal dilemma on the issue ahead of the General Elections. However, it has left the underlying genuine concerns of petitioners, which resonate with the grievances of a significant section of the Indian population, unaddressed.
The apex court has expressly reasoned: “Where the Constitution itself specifically vests Parliament with the power to decide upon the appointments of the Election Commissioner, and Parliament exercises this power, (there should be) no question of Executive overruling”. This compact reasoning is highly accurate and almost irrefutable, as far as Constitutional principles and provisions are concerned. It goes without saying that the court has done the right thing by restraining itself within the confines of judicial review and abstaining from interfering into the legislature’s domain.
This, however, in no way undermines the legitimacy of concerns raised by the petitioners. Their main line of argument is that the new selection process provided under the Chief Election Commissioner and Other Election Commissioners Act, 2023 reeks of executive dominance. This apprehension is not unfounded as the three-member selection committee is headed by the Prime Minister and consists of one Union Minister besides the Leader of Opposition. Furthermore, the selection committee deliberates upon the names shortlisted by the Search Committee that, again, is dominated by the executive domain.
In its affidavit, responding to the petitioners claims, the Centre had defended the new selection process. The argument that the independence of the Election Commission or any authority does not hinge on the presence of a judicial member in the selection committee may hold theoretical merit. However, it overlooks the pragmatic realities of governance and the inherent risks of executive overreach. The exclusion of the CJI from the selection panel is a contentious point, not merely for the absence of a judicial figure but for what this exclusion symbolises—a tilt towards executive predominance in a domain where impartiality is sacrosanct. The exclusion (or inclusion) of the CJI becomes immaterial as long as the impartiality of the selection process is ensured. Furthermore, the affidavit's assertion that senior government functionaries should be presumed to act fairly and in the public interest is a normative expectation rather than an empirical certainty. The bedrock of democratic governance is not presumptive integrity but structured checks and balances that prevent the concentration of power. The contention that the legislative framework, as enacted, should be presumed Constitutional until proven otherwise, sidesteps the essential debate on whether this framework adequately fortifies the ECI against the spectre of politicisation. The narrative that the appointment of election commissioners has always been an executive prerogative is highly flawed. While the government rightly points out that this practice has been in place since the inception of the Republic, it also inadvertently highlights a critical lapse in evolving India’s democratic institutions in line with the principles of independence and transparency. The question is: whether or not the government of the day is willing for a positive and well-meaning change!
To sum up, the Supreme Court’s verdict is in accordance with the Constitutional principles and provisions. However, the executive and legislative organs of the government should have exhibited greater political maturity in framing and implementing the law relating to the appointment of ECs.