The legal challenge to the appointment of election commissioners saw the Supreme Court bench make strong observations on the current selection process. The bench suggested that the Chief Justice of India's presence in the appointment committee would be appropriate and that Chief Election Commissioners were getting very brief tenures despite the six-year term provided for them. The Centre countered, questioning the wisdom of judicial intervention and citing the separation of powers doctrine. Demands for bipartisan appointments to the Election Commission have been around for decades, but governments have seldom agreed. In that context, the present constitutional challenge is an interesting development.
EC as an institution plays a stellar role in safeguarding democracy. In election after election, EC has unfailingly ensured that the writ of the voter carries the day, and continuity or transition of governments happen without any questions posed over the election process. This is a phenomenal achievement, which even the ongoing hearings must applaud. Nevertheless, the shift towards abipartisan, consultative appointment process would be desirable because that has been the larger trend of India’s legislative and democratic evolution in the past two decades.
The CVC Act 2003 empowers a committee comprising the PM, CJI and the leader of opposition to recommend central vigilance commissioners. These three also make recommendations for appointment to the Lokpal body and CBI director under the Lokpal Act 2013. The quashed NJAC Act 2014 had tasked the trio to select two eminent persons to be part of the six-member judges appointment commission. As can be seen, governments under three different PMs converged on a bipartisan model for key appointments.
This does make a case for following a similar process for EC too. But SC's quibble that CECs aren't getting the fixed six-year tenure is puzzling. What is important is a CEC's independence, and the difficult removal process requiring impeachment ensures the post has security of tenure. Perhaps, the two other election commissioners must also be similarly protected, since conventionally the seniormost becomes CEC later. The pricklier question is whether SC should intervene in appointments to a coordinate institution since no abuse of power has happened, unlike say malafide executive interference in pre-collegium era judicial appointments. Ideally, political parties should arrive at a consensus and work out the EC appointment process in Parliament. SC has a point. But Parliament should decide.
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