T K Arun
By directing the Election Commission to be appointed by a non-partisan panel, the Supreme Court (SC) strengthens democracy. But more needs to be done for institutional independence. EC, as well as all other regulatory bodies made autonomous of the executive, should be made answerable to designated committees of Parliament. This is essential to ensure the democratic accountability of all institutions to the ultimate sovereign, the people.
EC is the chief agent and arbiter of free and fair elections in the country. It is vital for the people and all political parties to have full faith in it. There have been a number of questions on EC’s decisions, and too many debates have been along party lines.
This makes the five-member constitution bench’s directive that the selection of the CEC and other members of the Commission should be made by a panel comprising the PM, the leader of the opposition (LoP) and the CJI altogether welcome.
It gives the opposition and other critics of EC the satisfaction that new appointees would be free of any taint of partisanship. And that’s a good thing for BJP as well. For a party that enjoys genuine popular support, it is more than useful to solidify the idea that revealed popular preference is the result of nothing but free, democratic will.
Some people have voiced concern about SC transgressing its role as custodian of legal propriety to take on an executive role in the functioning of India’s democracy. There are two reasons not to lose much sleep over this.
SC’s Executive role
For one, this is not the first time the court would play an executive role. In coming up with this arrangement for appointing a constitutional agent who should not just be non-partisan but also be seen to be non-partisan, SC has followed the precedent set for appointing the director of CBI. The CBI head is appointed, as per the 2014 Lokpal Act, by a committee comprising the PM, LoP and CJI. And the experience of the recent past does not suggest that having tasted executive power, SC would develop an appetite for much more of it.
The second, more fundamental reason is the wide ambit the Constitution has given SC in the working of the Indian state, under Article 142: “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed, order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. ”
The qualification at the end is reiterated by the present ruling as well. The constitution bench has said that the scheme it has prescribed would continue, till Parliament passes a law on the subject.
This sweeping power of the court also has not eroded Indian democracy.
This intervention from the judiciary is essential as the Opposition, the normal source of resistance to government excess, is comatose, even as it traverses the country. For example, when a rival claimant to the Opposition space was arrested, Congress attacked that leader rather than the government.
But let’s come back to the central point: The court-mandated scheme is better than the arrangement it replaces, but it does not go far enough. Constitutional functionaries have to be not just appointed fairly but also held to account thereafter, something missing in the Indian system.
Whether market regulator Sebi, pension regulator PFRDA, banking regulator RBI, insurance regulator IRDAI, central investigative agencies, CAG or EC, its chief must be held to account by a committee of Parliament.
In a democracy, people are the ultimate sovereign, and their elected representatives should exercise that sovereignty. In recent times, elected representatives have seen their role more as voting automatons rather than as those who discuss the pros and cons of legislation or government conduct. That would change by getting committees of legislators to hold autonomous functionaries to account.
This article was first published in Times of India as SC’s order on EC is what India needs — more accountability on March 2, 2023.
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