Pick CEC & EC by consensus, not majority

The nation has a new Chief Election Commissioner (CEC) but we continue to grapple with an old controversy. The controversy acquires a new grist whenever it is time to appoint an election commissioner (EC) in the Election Commission of India.

Earlier, in November 2022, an EC was appointed a day before the petitions on the subject of appointments were listed for hearing in the Supreme Court of India (SC). History has been repeated by the appointment of the CEC and an EC on February 17, 2025 as the case was listed for hearing on February 19 after it was adjourned on February 12.

In March 2023, the SC asked a few tough questions and made some grave observations while ordering the government to legislate in keeping with the provision of Article 324 of the Constitution. As an interim measure, it constituted a committee comprising the Prime Minister (PM), the Leader of Opposition (LoP) and the Chief Justice of India (CJI). The committee would have been required to meet only in February 2024 when the first vacancy was scheduled to arise upon the retirement of an EC. In between, there were at least two sessions of Parliament, giving the government ample time to comply with the SC directions in getting a legislation through Parliament, making the SC-constituted committee "an ineffectual angel."

This time, on February 19, the case has been adjourned, perhaps, for a month. The outcome seemed a foregone conclusion as the appointment was made under a valid law. Once the process was complete, there was little possibility of the court upturning the decision. It is unlikely that the SC will interfere with appointments that have been made as per provisions of an extant law. The appointments cannot be invalidated just because the petitioners find the provisions of the law disagreeable. The process might appear to be improper but it wasn't illegal.

Now, the selection committee, whatever be its present or future composition, may not be required to meet unless there is an unforeseen exigency because there will be no need to make any appointment till July 2028 when an EC is scheduled to superannuate. However, that may not minimise the angst of the petitioners as the main bone of contention is the composition of the selection committee provided for in the law enacted in December 2023 in pursuance of the SC order. That is now under challenge.

Let's look at the historical facts to examine the alleged impropriety. Article 324 of the Constitution, which vests the ECI with the power of "superintendence, direction and control of elections", also provides for its composition and the manner and terms of appointment of the ECs under 324 (2) and (5). The Constitution provided that the appointments shall be made by the President and shall be "subject to the provisions of any law made in that behalf by Parliament."

However, the system of appointment followed for 73 years worked without any specific law made under 324 (2). This process produced CECs known for their fierce autonomy and independence and ECs who exercised their independent judgement fearlessly while dealing with matters pertaining to those in power. The performance of the appointees was not necessarily influenced by the way they were appointed. The process may not always guarantee the product quality; people matter.

However, the SC saw the absence of any specific law on the subject as a "legislative vacuum" and used its power under Article 142 to prescribe guidelines "to govern the process of selection and removal of CEC and ECs, till the Legislature stepped in." It felt that the "legislative vacuum" gave the executive unbridled authority to choose functionaries whose neutrality and independence to hold free and fair election "is a sine qua non for upholding the democracy as enshrined in our Constitution." It ordered that "until the Parliament makes a law in consonance with Article 324(2)", the appointment of the CEC and ECs shall be made on the recommendations of a three-member committee comprising the PM, LoP and CJI.

The inclusion of the CJI in selection panels was not without precedents. It had been working well with respect to other positions like Lok Pal and Director CBI. But the government decided to exclude the CJI and instead include a minister to be nominated by the PM in The Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions Of Service And Term Of Office) Bill, 2023, giving rise to more allegations and litigation.

The government invited these allegations and litigation for inexplicable reasons as there are no known instances of the CJI disagreeing with any appointments proposed by the government in panels where he was a member. The composition of the selection committee as per the new law has a structural bias in favour of the government as it is inconceivable that the nominated minister would disagree with the PM or vice versa. The third member's view, if different, carries no weight except to fuel a row.

It has been suggested that the law should prescribe that the selection be done by consensus and not by majority. But that has the potential of creating an inherent administrative dysfunctionality, giving any one member (obviously the LoP) a veto power that can hold the process to ransom. The process is better served if the concern for reducing the government's overwhelming authority is addressed. There are two ways of addressing it.

One is to have a fourth member in the selection committee, who could be a nominee of the CJI, if not the CJI himself.

Second, the selection panel should recommend two candidates for every post and they should be subjected to an open Parliament hearing, as is the case in many public appointments in some other countries.

Let the ECI appointments pave the way for a transparent way of selecting people to high public offices. It will help cleanse public life and reduce the bitter controversies that have engulfed these important and sensitive positions.

It is important to pay heed to the other part of the SC judgement that pertains to securing for the ECs the protection from removal provided to the CEC. The judgement says it would be "desirable that the grounds of removal of the ECs shall be the same as that of the CEC that is on the like grounds as a Judge of the SC subject to the 'recommendation of the CEC' as provided under the second proviso to Article 324(5)." Why should any government be seen to be in a hurry to get rid of an EC summarily?

An umpire must be free from bias, free from allegations and free from fear if the process of elections is and seen to be fair. It is one controversy our noisy democracy could do without.