EC selection, judicial overreach and the problem with 'We are not saying so but it looks like that'

In a different case in November 2022, the Supreme Court itself had noted: “There are some things courts can do and some things courts cannot do. We are to look at the judicial aspects.” (Illustration by Suneesh K.)

Media reportage of the Supreme Court hearings on a batch of petitions challenging the fairness and transparency of the process of selection of election commissioners (EC) indicate that this may be the latest case of judicial overreach.

In the last decade or so, we have seen many instances of the higher courts intervening in matters that are the responsibility of the legislative or executive branch of the government.

In the EC case, the five-judge Constitutional bench has been making lofty critical comments about the state of the nation and its governance systems. But this sort of off-the-cuff observations has also become routine now.

In the last few days, the judges have remarked:

· That the selection process may be deeply flawed and is possibly being manipulated by the government to find “yes-man” ECs.

· That the “so-called independence (of the ECs) … is completely destroyed... Particularly in view of the disturbing trend we have found...Nobody can question them since there is no check.” And then, quite amazingly, going on to claim: “We are not saying so but it looks like that.”

· That the best way to make the selection process independent would be to involve the Chief Justice of India (CJI) in it.

To a lot of people, much of this possibly sounds like grandstanding to get media coverage, or preaching to the world from a self-assumed position of pious superiority. To publicly allege, while the case is still being argued, that the Election Commission, which lies at the core of our democratic processes, has been totally subverted is, to put it mildly, rather intemperate.

And then the addendum: “We are not saying so but it looks like that.” That is, though we have no evidence to back this claim, it is our perception. What exactly do the judicial system and the law have to do with perceptions?

The court has observed that since 1996, all chief election commissioners (CEC) have had short tenures, and thus they may be pliable to the ruling government’s wishes. It is currently examining the file related to the recent appointment of Arun Goel as election commissioner—whether it was done in “a tearing hurry” and whether a younger and more deserving officer should have been preferred.

But this could open a Pandora’s Box. If the Supreme Court arrogates to itself the power to decide on the selection of every person to a constitutional position, there will be chaos in government. Will the Supreme Court now be intervening in state governorships too?

In any case, does a committee of judges have the expertise to figure out who the best candidate for a specific bureaucratic responsibility is?

Of course, all of this is ironical, coming as it does from the one Indian institution that has placed itself above all scrutiny. The court talks of CECs getting short tenures, but the fact is that India has had 25 CJIs in the 26 years since 1996, the year the court mentioned, including tenures as short as 30 and 40 days. There have been 15 CECs in the same period. The court asks whether a younger person could not have been considered for CEC, whereas it itself goes strictly by seniority when appointing the CJI, leading to these absurdly fleeting stints. The CEC and the ECs, like Supreme Court judges, retire at 65.

When the court says that “nobody can question (the ECs) since there is no check”, it could very well be describing itself. The collegium system for selecting judges is entirely opaque and is not open to any questioning. Parliament passed the National Judicial Appointments Commission Act in 2014, to set up a body for recruitment, appointment and transfer of judicial officers. The Supreme Court struck it down the next year, essentially giving itself blanket powers to appoint and transfer judges in our higher courts.

In her dissenting note to the judgment, Justice Ruma Pal remarked that the collegium system was marked by “dubious appointments” and “growing sycophancy and lobbying”.

So we have a higher judiciary system that is entirely unaccountable to the people of India. It selects its members through processes it refuses to reveal to the public, and regularly hectors other branches of government—and anyone it chooses to—about democratic principles.

There also seems to be no clear pattern to how it functions or which issues it considers worth its time.

Early this month, the Supreme Court refused to list an urgent petition asking for a ban on stubble burning in states neighbouring Delhi, saying: “There are some things courts can do and some things courts cannot do. We are to look at the judicial aspects.” Yet, it stepped in when farmers in a few North Indian states began protesting the three farm laws brought in by the Narendra Modi government. The laws, essentially a new policy, had been passed by Parliament—so why should courts interfere, unless the constitutionality of the laws was in doubt? Why should courts get into judging whether a policy is good or bad?

But the Court constituted a committee of experts to study the impact of the laws on farmers. Interestingly enough, it did not make public the committee’s report or take any action based on it. It was only after the government repealed the laws, more than a year after the report had been submitted, that it came to be known—not through the Court—that the committee had found that more than 60 percent of Indian farmers supported the laws.

In recent weeks, the Court has spoken about “freebies” promised by political parties in their election manifestos. While any sane person would agree that reckless sops to lure voters can bankrupt a government, is there any way to objectively judge what is an acceptable freebie and which is not? In fact, is there any universally acceptable definition of a freebie even possible?

At what point does a scheme that is publicized as a tool for empowerment—for instance, subsidized power or exemption of bus fares for women—become a freebie? Whatever their economic logic or illogic, these promises are an integral part of electoral politics all over the world. Again, this is an area where courts should perhaps focus only on specific cases that may be legally dubious.

The Supreme Court cannot address every flaw that an aggrieved petitioner perceives or imagines in every part of our society and systems, and need not try to do so either. Our Constitution has clearly delineated the roles and responsibilities of each of the three branches of government, based on the carefully thought-through principle of separation of powers and checks and balances. Unchallengeable power in the hands of one branch may not be very good for democracy.