Time and timing: On the CEC selection process

The appointment process of the Chief Election Commissioner (CEC) and Election Commissioners (EC) has once again become a point of contention, with the government proceeding with the process laid down in its December 2023 law.

Controversy Over the Appointment Process

• 2023 Law vs. 2022 Verdict: The newly enacted law in December 2023, which governs the appointment of the CEC and ECs, is at odds with the 2022 Constitution Bench verdict, which suggested that a committee consisting of the PM, LoP, and the CJI should be responsible for selecting members of the Election Commission of India (ECI). The new law replaces the CJI with a Union Minister in the selection panel.
• Court's Deferred Hearing: The Supreme Court, which had deferred the hearing of the case to February 19, 2025, has raised concerns over developments in the interregnum, observing that any decision on the validity of the Act will follow the Court’s final ruling. Despite the pending judicial review, the government proceeded with appointments under the 2023 law.
• Government's Defence: The government justifies its actions, arguing that the 2022 verdict was an interim measure until a law was enacted by Parliament. It contends that the Court's order was temporary, and the new law is constitutionally valid as it reflects the legislature’s role in defining the appointment process for the CEC and ECs.

Lack of Independence in the Appointment Process

• Executive Dominance: The 2023 law's inclusion of a Union Minister in the selection panel, instead of the CJI, has raised concerns about the independence of the Election Commission. With a 2:1 majority in the committee (with the executive holding significant weight), critics argue that the process undermines the autonomy of the Election Commission, especially in light of the perception that the ruling party could influence the appointments.
• Recent Appointments Amid Court Hearings: There have been appointments made by the government in the midst of ongoing Court hearings, further fueling the perception of executive interference.
• Declining Public Perception of the ECI: The public perception of the Election Commission as an independent body has diminished, with growing concerns over its ability to act impartially. The perception that the ECI could be influenced by the executive undermines its credibility, and it is crucial that the Commission remains above political influence to ensure free and fair elections.

Need for Judicial Intervention and Urgency

• Court's Role in Ensuring Independence: The Court's delay in adjudicating this issue has allowed the government to proceed with appointments under the contested 2023 law, potentially making the matter a fait accompli. The Court must now urgently address the question of whether the procedure outlined in the new law compromises the independence of the Election Commission, as envisaged in the 2022 verdict.
• Impact on Election Integrity: The legitimacy of elections depends on the perception of their fairness and the independence of institutions like the Election Commission. If the ECI is seen as compromised, the public’s faith in the electoral process may erode, undermining the very foundation of democracy. The Court must resolve this issue to ensure the ECI remains a strong, impartial institution.
• Urgency for Immediate Judicial Action: As the general election approaches, the urgency of resolving the issue cannot be overstated. The Court’s timely decision is essential to safeguard the integrity of the Election Commission and the democratic process in India.

Practice Question:

Q. The appointment process of the Chief Election Commissioner and Election Commissioners has raised concerns over the independence of the Election Commission. In light of the 2022 Constitution Bench verdict, critically examine the implications of the new 2023 law governing appointments and its potential impact on the integrity of the election process