Article 324 of the Constitution of India says that “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”
Although that sentence is lengthy, it’s not significantly obscure. Or so we thought. Recently, the Supreme Court defined what that sentence actually means: The Chief Election Commissioner (CEC) should be appointed by a panel consisting of the Prime Minister, the Leader of the Opposition (LoP) within the Lok Sabha and the Chief Justice of India (CJI). And additionally the captain of the profitable group of that yr’s IPL.
Okay, I made up the final bit concerning the IPL. But the remainder of it’s largely true. Significantly, the Supreme Court did depart the door open and stated that these new guidelines could possibly be modified in case Parliament makes a legislation. This is likely to be a concession to the precise textual content of the Constitution, which says that the appointment is topic to legal guidelines handed by Parliament. But with a little cleverer “interpretation” sooner or later, I am positive there may be a method round that as effectively.
In a perfect world, India’s political events ought to have come collectively to oppose this judgement. Is the Supreme Court merely deciphering the Constitution or writing a new one? But the ruling celebration is scared. It doesn’t need to be seen as opposing a verdict that supposedly imposes equity from exterior. The Opposition has welcomed the decision. They see it as a backdoor to energy regardless of shedding the final election. Perhaps, they don’t really feel so assured concerning the subsequent one. This is why they see no draw back within the close to future.
All this probably implies that the decision will stand. We people (on this case, our representatives) had been too divided. So another person will stroll away with all the ability. You know we now have a lengthy reminiscence of this type of factor taking place to our nation. So the least we are able to do is ask some questions.
Is it actually extra democratic to decide on the Chief Election Commissioner this manner?
When a bigger physique makes choices, versus only one individual, it’s usually good for democracy. But the bigger physique will need to have no less than some declare to symbolize the need of the folks pretty. The new judgement places the Prime Minister on the identical stage because the LoP. To turn out to be Prime Minister, you could have 272 Lok Sabha MPs on your facet. To turn out to be Leader of the Opposition, you want simply 55. And on this new panel, the LoP may come collectively with the Chief Justice and overrule the Prime Minister by a 2:1 vote. How is that this democracy?
But wait! The judgement goes even additional. It says that if there isn’t any official LoP, the function shall be performed by the chief of the Opposition celebration that has the best numerical power. This implies that the bar for sitting on this panel is even decrease. In concept, it’s set at only one seat. And what occurs if no Opposition celebration meets the edge of 55 seats, however there are two events tied at say 35 every? This virtually occurred in 2014. Will leaders of each the Opposition events get to take a seat on the panel? Then the Prime Minister would have only one vote, and the Opposition would have two! They would have twice the votes exactly as a reward for shedding the election so badly that neither may get the 55-seat minimal. Still democratic? And who precisely does the Chief Justice symbolize? Do we dare ask?
Or perhaps there is just one seat for the Opposition within the panel. In case of a tie between Opposition events, maybe the Chief Justice additionally has the ability to determine which one has been elected extra “democratically.” The prospects appear limitless.
A complete new constitutional construction?
Article 324 of the Constitution stated that the CEC is to be appointed by the President. So far, it was understood that the President acts on the recommendation of the Council of Ministers. This has been made express a lot earlier in Article 74, which reads: “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice…”
If the President is now required to behave as per the recommendation of any panel appointed by the Supreme Court, it could seem that we now have a entire new Constitutional construction. So we now have to marvel. Since the Supreme Court has the ability to determine who sits on this panel, may they really take away the Prime Minister from this panel tomorrow in the event that they needed? Could the court docket have created this panel with out together with the Prime Minister in any respect? Perhaps they may have made this panel with solely Opposition leaders on it, or solely judges, and even members of so-called civil society. Would that be authorized too?
What different appointments can the judiciary intrude with?
They say this judgement is sweet as a result of we want the CEC to be non-partisan. I agree with the second half. But why does non-partisan essentially imply judicial intervention? For that matter, we want folks in all kinds of positions to be non-partisan. How about lecturers in authorities colleges? Surely we don’t want a partisan training system. So ought to there be a panel in every state to pick faculty lecturers, with each judges and Opposition leaders represented on it?
How about docs? We ought to make sure that they’re non-partisan as effectively. And then there may be the obvious one, presumably with essentially the most direct influence on our every day lives. We want the native police to be non-partisan. The identical goes for each bureaucrat in each authorities division, from secretaries to the native motorized vehicle bureaus. Could the Supreme Court switch all of the powers of elected governments to a panel consisting of varied different political events and judges?
Is our judiciary starting to resemble a “priestly class?”
The system works when we now have checks and balances. If the judiciary can insert itself into the choices of the chief, then the chief ought to have a say in issues of the judiciary. The NJAC Bill of 2014 had accomplished precisely this. It had proposed to switch the prevailing collegium system for the appointment of judges with a National Judicial Appointments Commission (NJAC). Its composition was roughly much like the format that the Supreme Court considers excellent for choosing a non-partisan Election Commissioner. The NJAC would have senior judges, a consultant of the ruling authorities and a consultant of the primary Opposition.
And but, the Supreme Court in 2015 struck down the act that had been handed by Parliament and ratified by 16 state legislatures. So the collegium system stays. Only judges can determine amongst themselves who their successors will probably be. Interestingly, the phrase ‘collegium’ doesn’t seem wherever within the precise Constitution. It got here into existence by way of a collection of Supreme Court judgements “interpreting” the Constitution, culminating within the Nineties. Only the courts have the ability to find hidden meanings within the Constitution. But as with most issues involving the judiciary in India, it simply takes a few a long time to determine. Today, the internal workings of the collegium are stored secret, after all.
In all of historical past, a recurring theme is that of the seize of energy by one thing known as the “priestly class.” They say that solely they will interpret the scriptures. This class offers an increasing number of privileges to itself. The plenty can not simply method them. And once they do, the method is time-consuming and costly. Membership within the priestly class is commonly hereditary. We ought to no less than ask if there are parallels between such a priestly class and the Indian judiciary at this time. Does the concept of going to court docket make the frequent citizen really feel empowered or disempowered?
Has the Election Commission been behaving in a partisan method not too long ago?
Before we go round fixing one thing, we should ask a extra primary query. Is it damaged? In different phrases, has the Election Commission (EC) been doing its job or not? By all accounts, sure. Election campaigns in India have by no means been extra vigorous. Voter participation is up. Despite all of the conspiracy theories on the planet, digital voting machines (EVM) have been proven to be completely dependable. In 2017, the EC challenged political events to point out how an EVM could possibly be hacked or tampered with. No celebration even confirmed as much as the occasion.
In different phrases, everybody is aware of that India’s elections are being performed in a free and truthful method. Additional safeguards corresponding to VVPAT (voter verifiable paper audit path) have been created. After each election, one sales space is chosen randomly in every constituency and the VVPAT slips are tallied with the EVM vote totals. In 1000’s of cubicles unfold throughout dozens of elections for practically a decade, not even one mismatch has ever been discovered. Then what’s the fear?
I know. This is all a part of the “democracy in danger” narrative after 2014, isn’t it? The precise reverse is true. Did that in 2007, the EC dragged the Bharatiya Janata Party (BJP) by way of a collection of hearings on whether or not its recognition as a political celebration needs to be revoked? Look up this incident, as a result of it obtained fairly critical. And but it by some means managed to remain out of the limelight attributable to a excessive stage of cooperation between the ruling celebration and narrative makers within the media. Can you think about if that had been taking place to the primary Opposition at this time? For that matter, as a candidate from Varanasi in 2014, Narendra Modi was not allowed to deal with a single rally within the metropolis. The EC at all times discovered a motive to say no to him.
This sort of factor now not occurs at this time. Rahul Gandhi not too long ago went to Lal Chowk in Srinagar and raised the Indian flag there. When Sushma Swaraj, Arun Jaitley and different BJP leaders had tried to do the identical in 2011, they had been all arrested. So whereas our democracy will not be good, it’s doing higher than ever earlier than.
Indeed, for many who need the Supreme Court to abruptly intrude with the EC, allow us to flip this query on its head. Is there anybody who desires the EC to begin working extra just like the judiciary? Our elections are simply the most important on the planet. Most of our massive states have extra voters than any main nation in Europe. The EC has few everlasting employees. During elections, they get short-term staff from different authorities departments. The EC trains them to arrange and handle cubicles in each nook of the nation. Then, it manages to rely all of the votes precisely in a matter of hours. Compare this to the judiciary which is sitting on over 4 crore pending instances.
Is it not the function of the courts to make residents really feel empowered?
In 2016, the Supreme Court framed guidelines for retired judges (and their surviving spouses) to rent home assist at public expense. The motive apparently was that standing in strains to pay payments like frequent folks would embarrass retired judicial officers. Such choices are fairly frequent. In 2018, the Madras High Court ordered the National Highway authorities to create separate VIP lanes for judges. Again, as a result of ready in line like everybody else would “embarrass” the judges.
Such a sense of entitlement grates on the psyche of an aspiring younger Indian. And they groan every time little kids of former judges invariably make it by way of the collegium system. Through a course of that’s stored secret, after all. Add to that the 4 crore pending instances, the sword of “contempt” which hangs over anybody who disagrees with the court docket, and you’ll see why folks would complain.
And now we now have the sorry spectacle of judges popping out to complain that folk on social media are being unfair to them. How may the judiciary really feel pressured by mere phrases on social media, from individuals who haven’t any energy over something? If that’s nonetheless the case, would it not not make extra sense for judges to voluntarily keep away from studying what is claimed on-line?
Even if provisions for contempt of court docket are hardly ever used, it nonetheless has a chilling impact on free speech. Most folks wouldn’t be at liberty to speak about judges the best way they might speak about a politician or a bureaucrat for example. Why is that?
In a democracy, the onus will not be on the folks to respect any specific establishment. Rather, the onus is on each establishment to earn the respect of the folks. And for that, they have to make their case, very humbly if I might add, earlier than the Supreme Court of frequent residents. I consider that those that wrote the Constitution would agree.
Abhishek Banerjee is an creator and columnist. He tweets @AbhishBanerj. Views expressed are private.
Read all of the Latest Opinions right here
