That the post of the prime minister has sanctity is indisputable. He occupies the highest echelon in the executive ladder, and the incumbent represents the electoral choice of innumerable citizens. But to argue that the sanctity of the prime minister’s post is reason enough to trust his choice of chiefs and occupants of a key institution makes, to put it mildly, that elected leader appear sanctimonious.
Yet this is what the Centre has argued, informing the Supreme Court that the prime minister’s choice of the chief election commissioner and election commissioners is to be trusted on account of the presumed moral weight associated with the position. The context is illuminating. The deliberations were taking place in the course of the court taking up public interest petitions that have challenged the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 which tweaked the rules to remove the chief justice of India from the selection panel that picks the office holders of the Election Commission of India. That panel now comprises the prime minister, the leader of the Opposition, and a member of the Union cabinet nominated by the prime minister. The solicitor-general, unsurprisingly, argued along the lines of judicial overreach and did not lose the opportunity to point to the insular nature of the judicial Collegium where judges select other members of the judiciary. But it is evident that the current composition of the selection panel for the CEC patently queers the pitch in favour of the members of the ruling dispensation. So the issue, as the Supreme Court bench pointed out quite correctly, is not about distrusting the prime minister but of fairness, evenhandedness, when it comes to selecting the CEC. Incidentally, in Anoop Baranwal vs the Union of India, a five-member Constitution bench had stated unequivocally that the selection committee merits the presence of the CJI along with the prime minster and the leader of the Opposition.
The matter, the solicitor-general’s rapier thrusts notwithstanding, is uncomplicated. The choice of the CEC and his peers must be the outcome of impartiality. The presence of the CJI is also crucial because the lack of consensus, the consequence of the prime minister and the leader of the Opposition, quite naturally, pulling in opposing directions, is only to be expected. A cabinet member as selector, as is the case under the current law, tilts this delicate balance, making room for prejudicial choice. The net result is the creation of an Election Commission that functions under repeated accusations — fair or foul — of political partiality. Has that not been the case with the present EC whose autonomy has been questioned repeatedly on account of its controversial conduct?
There is an additional, but illustrative, point. The prime minister’s — any prime minister’s — presumed sanctity does not automatically translate into fair action. To err, after all, is human: all prime ministers are mortal. That is why checks and balances are the key to the functioning of crucial institutions in a democracy.
