The Hindu Editorial Analysis: Autonomy of the Election Commission

Know about Today’s The Hindu Editorial Analysis:  Today’s The Hindu Editorial is based on the Issue of Institutional Autonomy of various Important Institutions of the Country. The specific focus will be on the Election Commission of India. Today’s The Hindu Editorial Analysis covers GS 2 – Constitutional Bodies.

What Is the Issue?

Over the course of November and December, a Constitution Bench of the Supreme Court of India heard a crucial case about the method by which the Election Commission of India (ECI) is constituted, and Election Commissioners appointed. At the time of writing, the Court has reserved its judgment, which is expected early in the new year.

Election Commission of India (ECI)

Which are the Issues Pertaining to the ECI on Which the Apex Court Will Give a Verdict?

The issues before the Court are straightforward, but with far­-reaching ramifications for Indian democracy, These are:

• Is complete executive control over appointments to the ECI constitutional?
• What manner of appointment is sufficient to preserve the independence of the ECI, and the fairness of elections?

Where Election Commission Stands According to Classical View?

• According to the classical understanding of modern democracy, there are three “wings” of state: the legislature, the executive, and the judiciary.
• The task of the Constitution is to allocate powers between these three wings, and to ensure that there is an adequate degree of checks and balances between them.
• Traditionally, bodies that are involved with administrative and implementational issues — elections being among them — are believed to fall within the executive domain.

Where Election Commission Stands according to Modern View/Institutional View/4th Branch View?

• In contemporary times, it is now commonly accepted that healthy constitutional democracies need what are known as “fourth branch institutions” (or, alternatively, “integrity institutions”).
• Why 4th Branch Institutions Needed?: The reason why a “fourth branch” — in addition to the legislature, the executive, and the judiciary — needs to exist is the following: many of the basic rights and guarantees that we enjoy cannot be effective without an infrastructure of implementation. For example, the implementation of Right To Information Act, is not possible without an information commission. 

Election Commission of India: Composition, Role, Tenure, Power and Function

Why is it Necessary to Give Functional Autonomy to Fourth Branch Institutions?

• The above the fourth branch institutions need to be functionally independent from the political executive. This is because they are the vehicles for implementing rights against the executive.
• For example, to be effective, an Information Commission needs to be thoroughly independent of the government, against which it will be obligated to enforce the constitutional right to information.

Examples of Functional Autonomy 

South African and Kenyan Constitutions: The South African and Kenyan Constitutions have dedicated constitutional provisions for “fourth branch institutions” such as Human Rights Commissions, Election Commissions, and so on, calling these “integrity institutions”, and requiring them to be “independent.” The appointments process for such bodies normally involves multiple stakeholders from different wings of the state.

Indian Constitution: The Indian Constitution also provides for such similar fourth branch institutions. While the ECI is, obviously, an example, others include the Comptroller and Auditor General, and the Public Service Commission(s), and the National Commission for Scheduled Castes.

Is Functional Autonomy of Fourth Branch Institutions Under Threat?

• While the Constitutions go to some degree to protect the independence of fourth branch institutions while officials are in office (such as, for example, a high threshold on the removal of an Electoral Commissioner), the power of appointment lies exclusively with the executive (formally, the President of India acting on the aid and advice of the Council of Ministers).
• To put the point simply, the government decides who gets to be in charge of running fourth branch institutions.
• This is undoubtedly a problem. The link between the power of appointment to a body, and its control, is both intuitive and has been empirically established in multiple contexts. As the South African constitutional court correctly.

Where India Stands?

• Indian constitutional history as well points to the problem of the link between the power of appointment to a body, and its control.
• The collegium system for the appointment of judges — which has recently seen controversy again — arose as a response to executive abuse and attempts to control the judiciary, stemming from the constitutional text, which again gave to the President (i.e., the executive) the power to appoint judges.
• In the landmark Vineet Narain case, the Supreme Court likewise held that for the rule of law to prevail, the appointment of the CBI Director would have to be ratified by a three ­member body that included the Prime Minister, the Leader of Opposition, and the Chief Justice of India.
• Thus, Indian constitutional history is no stranger to the perils of executive power over appointments to independent bodies, and the fashioning of remedies against that.

List of Chief Election Commissioners of India 2020

What should be done in the Election Commission of India(ECI) Case?

• It is important to note that almost no constitutional democracy in the world allows the political executive sole power to staff a body as important to sustaining democracy as an Election Commission.
• Appointment processes involve the government, the Opposition, independent experts, and judicial experts, in a manner that no one centre of power has dominance, or a veto.
• The problem, however, is that an appointments process is difficult to create simply by judicial decree: it is something that needs political consensus, public deliberation, and, perhaps, a carefully crafted legislation.
• The Court, therefore, has its task cut out. It is obvious that the existing system where the executive has absolute power over appointments is unsatisfactory, has been historically problematic, and damages the rule of law. But the Court must be careful to avoid band aid or stop­gap solutions.
• One possible alternative is for the Court to hand down a suspended declaration of invalidity, i.e., a remedy where the Court puts into place certain interim guidelines, but leaves a more permanent, structural solution up to the legislature.
• It is for the Court to decide how best that might be achieved, but the guiding principles, at all times, must be functional and effective independence from the executive, from the moment of appointment to the retirement, and then beyond.

Cohort On Election Integrity by ECI

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(Recent Editorial Analysis by our team at Adda247)

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