Choosing the watchdog: On Election Commissioners appointment

Source: The post is based on the article Choosing the watchdog: On Election Commissioners appointment published in The Hindu on 4th MaChoosing the watchdog: On Election Commissioners appointment023.

What is the News?

A five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of the Chief Election Commissioner(CEC) and the Election Commissioners(EC) shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and Chief Justice of India (CJI).

Why did the Supreme Court give this verdict on the appointment of CEC and EC?

The original intent of the Constitution makers was that the manner of appointment should be laid down in parliamentary law. 

Article 324 says the President should appoint the CEC and Commissioners, subject to any law made on that behalf by Parliament. However, successive regimes have failed to enact a law.

Hence, due to inertia of the Legislature and the vacuum created in the absence of law make it necessary for the court to intervene.

What was the government’s argument on this?

The government had argued that in the absence of such a law by parliament, the President has the constitutional power and asked the SC to exhibit Judicial restraint.

Will the presence of CJI in the selection panel bring independence and credibility to the institution of ECI?

The presence of the CJI in the selection panel is not the only way in which an institution’s independence can be preserved.

For instance, there is no clear proof that the independence of the CBI director, who is appointed by a panel that includes the CJI, or his nominee, has been preserved or enhanced. 

Further, the CJI’s presence may give pre­-emptive legitimacy to all appointments and affect objective judicial scrutiny of any error or infirmity in the process. 

Hence, on its part, the government will be well advised to enact a law — but not one that seeks to preserve the current convention to get around the verdict — that is in tune with the spirit of the Court’s emphasis on the ECI’s independence.

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