The quick, if not hasty, filling up of two vacancies in the Election Commission of India (ECI) has attracted justified criticism. The multi-member body got two new members within days of the resignation of Arun Goel, an Election Commissioner (EC) whose appointment itself came in the midst of a Constitution Bench hearing for a truly independent process of selecting members of the panel that conducts and supervises India’s elections. Critics are not wrong when they point out that the Act setting out the process of selecting the Chief Election Commissioner and other ECs appeared to fall short of the sort of independence the Constitution Bench verdict of March 2023 envisaged. The selection took place at a time when a petition challenging the validity of the Act was about to be taken up for hearing. To add to the unfortunate set of circumstances, Mr. Goel’s resignation for “personal reasons” has gone unexplained. It is a matter of grave concern that an EC whose term was set to go on for a few more years should choose to resign just days before the Commission finalised the Lok Sabha election schedule. It goes without saying that the discussion on the process selecting the ECs has no bearing on the competence or suitability of Gyanesh Kumar and Sukhbir Singh Sandhu, the two new ECs.
The real problem may lie with the law that Parliament chose to enact last year in response to the Supreme Court of India questioning the absence of any legislation since the inception of the Constitution, as required under Article 324, laying down an appointment process for the ECs. The Court’s emphasis was on the ECI’s independence from the executive so that the elections the panel conducts are truly free and fair. Towards that end, it sought to fill the vacuum by an interim arrangement under which the Prime Minister, the Leader of the Opposition and the Chief Justice of India (CJI) formed the selection committee to choose the CEC and ECs. However, it was meant to be in place only until Parliament enacted a law. In response, the government enacted a law that constituted a panel comprising the Prime Minister and any Union Minister, besides the Leader of the Opposition, or the leader of the largest single party in the Opposition. The question now before the Court is whether a committee in which the executive has a two-one majority can be a truly independent authority. The argument that Prime Ministers have always been selecting the CEC and ECs seems attractive, but, ultimately, an executive-driven process has to yield to one more rooted in the constitutional principle of having an independent body to hold free and fair elections, even if the CJI, as an institutional head, might not be the person most suited to be a part of the selection process.
