Time and timing: On the CEC selection process

Once again, the manner of appointment of the Chief Election Commissioner (CEC) and Election Commissioners (EC) has become controversial, with the government going ahead with the process laid down in its December 2023 law, which is under challenge before the Supreme Court. Last week, the Court had deferred the hearing to February 19, while observing that if there was any development in the interregnum, it would meet the consequences of a subsequent decision on the validity of the Act. Ignoring a request from the Leader of the Opposition (LoP), Rahul Gandhi, the panel elevatedGyanesh Kumar as the CEC and inducted Vivek Joshi as the third member, following the retirement of CEC Rajiv Kumar. The question is whether the Act of 2023 goes against a 2022 Constitution Bench verdict that put in place a committee comprising the Prime Minister, the LoP and the Chief Justice of India (CJI) to select the persons to helm the Election Commission of India (ECI). The Act, however, includes a Union Minister in the committee instead of the CJI. The government argues that the Court’s panel was only an ad hoc measure until Parliament came forward with its own law, as required in the Constitution. The petitioners maintain that the thrust of the 2022 judgment is that the appointment process should be insulated from executive interference so that its functioning will be truly independent.

Whether the CJI should be part of the selection committee is debatable, but there is little doubt that the 2:1 majority vested in the executive renders any selection vulnerable to the criticism that those chosen in that manner would not be seen as independent. The BJP-led government has been making appointments in the midst of court hearings. The Court has been declining to interfere in time, leading to such appointments becoming a fait accompli. The government had appointed Arun Goel as an EC in 2022, in the middle of the Constitution Bench hearing, and two ECs in March 2024 in the run-up to the general election to replace Mr. Goel, who had resigned, and another EC who had retired. Few will disagree that the public perception of the ECI as a fearless and fiercely independent institution has been on the decline. If elections are to be seen as free and fair by the whole electorate and not merely followers of the winners, the Court should not delay this matter any further. It has to adjudicate the question of whether the procedure set out in the law falls short of the level of independence envisaged in the Constitution Bench verdict for members of the ECI.