Why India’s top court questioned Election Commission appointment process

A few weeks ago, India’s Law Minister made headlines when he questioned the collegium system of appointing judges.

This lead to a pushback from the top court with former judges reading this as a warning that the centre was seeking a greater say in judicial appointments and therefore comprising the independence of the judiciary.

Last week, there was quite an unprecedented exchange on the floor of the top court as a five judge Constitution Bench started hearing a bunch of petitions challenging the process of the appointment of the Election Commission.

In a series of observations, the court asked the centre what was the “tearing hurry” to appoint Arun Goel as an Election Commissioner last week, within a span of just 24 hours.

Goel was recently made part of the three-member Election Commission.

Questioning the current system of appointment, the court said that there is “a dire need for change”.

“A TN Seshan only happens once in a while,” the court said.

On Goel’s appointment, the centre said the Supreme court should look at the matter in entirety. There are “several informal procedures in matters of governance”, the top law officer said, saying there was no need for the courts to intervene.

The Election Commission of India is a permanent Constitutional body which was established on Jan. 25, 1950. Originally the commission had only a Chief Election Commissioner. But since the early 90s, it has the Chief Election Commissioner and two Election Commissioners.

The Chief Election Commissioner can be removed from office only through impeachment by Parliament.

At the moment, the Election Commissioners are appointed by the President on the advice of the central government.

The pleas in the Supreme Court are challenging this system and calling for a collegium of the Prime Minister, Leader of the Opposition and the Chief justice of India to appoint them instead.

The controversy comes at a time when the Election Commission’s neutrality and independence have increasingly been called into question.

India’s Election Commission has rightly been lauded all over the world for conducting elections in the world’s largest democracy.

When you look at how messy and slow the election systems are in countries like the United States, there is an even greater appreciation for what India’s EC has been able to achieve.

But in recent years, even former Chief Election commissioners have begun to question whether the Commission is coming under pressure from the executive.

Look at how the poll dates for Gujarat and Himachal Pradesh were announced. Himachal was announced first, with Dec. 8 as counting day.

The Commission gave no convincing answers to journalists on why it did not announce Gujarat at the same time as was widely expected. And then, a few weeks later they did announce the Gujarat dates — counting will be along with Himachal. Why didn’t the EC just say so earlier?

Is it because the government wanted more time to announce projects in Gujarat which would otherwise have violated the model code of conduct?

A rap on the knuckles

Then there was the case of Ashok Lavasa, the only member of the 3-man Election Commission to rule that the Prime Minister had violated the Model Code of Conduct while campaigning for the 2019 general election.

A few months later, even though he was due to take over as Chief Election Commissioner as per norms of seniority, Lavasa suddenly quit to join the Asian Development Bank.

While opposition leaders were penalised for violating the model code, top ruling party leaders only got a rap on the knuckles.

Last year, the Election Commission joined an online interaction called by the PMO, inviting widespread criticism.

And then last month, in a total U-turn, the EC suddenly sided with the government on freebies.

Supreme Court’s intervention on appointments and greater transparency is welcome but it would also do well to heed this advice for itself and the way judges are appointed.

While the government should not have a say in appointing judges, the current collegium system is opaque and lacks transparency as well.