Executive Control of Institutions: The Path between Independence against Opacity

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In a speech delivered in November, Indian Union Law Minister Kiren Rijiju, who is tasked with overseeing the judiciary, called the body’s so-called “Collegium” appointment system both “opaque” and “alien to the Constitution.” Interestingly, in the following weeks, the Supreme Court, while inspecting files following the hastened appointment of Arun Goel as the Election Commissioner, questioned the process by which he was selected by the Law Minister, raising similar issues of opacity and lack of transparency. 

Presently, the judiciary’s appointments go through the Collegium whereby the Chief Justice of India, with four senior judges, recommends appointments and transfers. Once the Collegium recommends someone, the Executive (through the President) formally appoints the judges. The sheer lack of transparency in appointments to higher courts, the lack of coherent guidelines on what determines these appointments, and the lack of accountability from any other arm of government or the broader public in the process has resulted in a judiciary that looks like an old boys’ club of upper-caste men. Despite Constitutional amendments to the system, scathing criticisms of unreasonable transfers of senior judges without elevations to Chief Justice positions or the Supreme Court, and walkouts and protests by advocates associations of its arbitrary exercise of power, the Collegium survives. 

The Election Commission (EC) has sprung into Indian discourse recently with a batch of petitions challenging the process, but it too faces issues of opacity. As per 324(2) of the Constitution, the Election Commissioners are appointed by the President, subject to any law made by the parliament in this regard, and under the guidance of the cabinet (the Executive). No checks, no guidelines, no scrutiny. 

In the last month, the appointment of the Election Commissioner has been criticized as hasty, with a “lightning speed, 24-hour procedure,” for filling a post that had been vacant for over six months. However, the appointment of Supreme Court judges has been riddled with concerns about a slow process where the Executive sits on files sent by the Collegium without approving the names of judicial appointments, leading to significant delays in the administration of justice. While the Executive has the sole power in determining the Election Commissioner (a practice currently listed for future Supreme Court review), it only has the power to send names for reconsideration in judicial appointments. 

The exclusive right to appoint an Election Commissioner, combined with a fear of judicial intervention in determining the constitutionality of the process, is perhaps why a “lightning speed” appointment was made. Conversely, the Executive has to technically clear the names sent by the Collegium for judicial appointments, if they have been re-iterated by the Collegium even after a preliminary rejection by the Executive. Instead of such a process, the Executive keeps names pending for months without clearing them, neither rejecting nor accepting them. This leads to judicial vacancies and inordinate delays in appointments. 

The Collegium system of judicial appointments is where the Executive has no role to play except for a review mechanism. In contrast, the Executive directly makes the EC appointments, which is at the heart of this issue. While these two issues are seemingly disparate, the reason for fast-tracking one process while sitting on the other ultimately boils down to a familiar concern democracies around the world have to grapple with: how can one maintain the independence of institutions like the judiciary and EC from executive influence while still retaining accountability in their functioning?

Here, it becomes crucial to appreciate the powers of these two institutions to understand the gravity of maintaining their independence. The Indian judiciary is, by some accounts, the most powerful in the world. It exercises vast executive powers through the PIL (Public Interest Litigation) system, allowing any citizen with “sufficient interest in instituting an action for redressal of public wrong” to move the court. It has extensive judicial review powers, with the power to strike down constitutional amendments if they violate the “basic structure tests,” the ability to initiate suo moto proceedings, and at times, even place stays on legislative actions absent a constitutional basis. 

The EC exercises regulatory power—it directs the number and location of polling stations, decides schedules and the number of phases required for any given election, prepares voter rolls, registers candidates and political parties, oversees the implementation of Code of Conduct rules, etc. While seemingly administrative, taken together, the number and location of booths determine the extent of voter participation, the EC’s allocation of symbols to candidates (a reform undertaken by the EC) determines how illiterate voters access the system, enforcement of the Model Code of Conduct circumscribes the nature of campaigning that can be undertaken, etc. Combined with the deferential approach of courts towards the policies on, for instance, adjudicating party symbols in case of party splits, the power exercised by the EC in electoral outcomes is undervalued but immense. They have, in many cases, been deemed co-equal, if not even greater than parliamentary law when it comes to administrative election matters. 

Thus, the executive need to wield control over these institutions is understandable. The judicial need to insulate these institutions from government influence is also appreciable. Both these institutions are expected to be politically distant to ensure a check on the legislature and run the democratic machine smoothly. However, such insulation inevitably comes at the cost of being “anti-democratic” in character since they cannot be subject to the rules of the legislature (the only arm of government that is democratically elected), when their role is to place rules on said legislature and their parliamentarians. However, as an institution becomes more opaque and less accountable to the public, it is much easier to bend backwards to the Executive when there is no formal mechanism of public scrutiny.

For instance, despite having no role to play in judicial appointments, the judiciary of the infamous Justice Rajan Gogoi was widely known to be an executive’s bench. In retrospect, this is not shocking given his position as a member of the Rajya Sabha (upper house of parliament), a near-perfect retirement under the ruling establishment. The Supreme Court has not once (across electoral bonds, the revocation of Article 370, PM Cares Covid Fund, and demonetization), actually struck down any scheme on constitutional grounds. The EC, for its part, has been mired in controversy around appointments being biased towards the ruling party, for e.g., the partial enforcement of code of conduct rules (most notably concerning Prime Minister Narendra Modi’s recent road rally during the Gujarat elections), biased scheduling of elections, irregularities in voter lists, and more. However, it is equally significant to illustrate the independence these institutions can exercise. When Modi dissolved the Gujarat assembly elections post the 2002 riots, the EC led by James Lyngdoh ruled out early elections in the state. 

None of this is unique to the current ruling regime. In fact, the nature of the judiciary and the EC as they stand today come from a very specific post-emergency context. It was the Congress (a national political party, and the most dominant party in the early decades of Indian independence) during TN Seshan’s term as Chief Election Commissioner (a fiercely independent head) that the structure of the EC was changed from having one head, to having two additional Election Commissioners. TN Seshan (rightly) argued that by appointing two more Election Commissioners, the then-government the government wanted to “sideline the CEC [Chief Election Commissioner] and to erode his authority so that the ruling party at the center could extract favorable orders by using the services of the newly appointed ECs”. Even the current Supreme Court Collegium system, which firmly has judicial primacy at its heart, is a product of post-emergency India, where the judiciary felt the need to rise as an institution of integrity and protect itself against Executive overreach. 

Thus, while shielding from executive influence is necessary to have independent institutions, it is hardly enough. Furthermore, the more insulated an institution like the judiciary becomes, the harder it is to hold the institution itself to any accountability when it does acquiesce to the whims of the Executive. While this is a tough tradeoff to resolve, transparency is a base-line requirement for these institutions. 

The Collegium conducted a failed experiment in transparency when it decided to publish the resolutions of collegiums concerning the appointment of judges. But since 2019, the resolutions only contain the list of nominated judges without any disclosure about who recommended whom, what considerations were taken into account, the number of people consulted, their feedback, and who concurred and dissented concerning specific appointments. Building accountability and trust must start with more precise guidelines from the Supreme Court when appointing judges or Election Commissioners, as well as public availability of Collegium and Union Law Minister meetings about such appointments. Undoubtedly, it is essential to conceptualize different systems of appointment that strike a balance between accountability and independence. However, transparency in the existing appointment processes is the first step in establishing such a balance. 


References

  1. Niranjan Sahoo & Anindita Pujari, “The Indian judiciary @ 75: A crucial pillar of democracy” ORF, August 15 2022. https://www.orfonline.org/expert-speak/the-indian-judiciary-75-a-crucial-pillar-of-democracy/. 
  2. The Mint, “The Judiciary is shifting the balance of power” The Mint, May 18, 2016 https://www.livemint.com/Opinion/lPqfldPjTc9t4aBYupFZKK/The-judiciary-is-shifting-the-balance-of-power.html. 
  3. Sanjay K. Jha, “Narendra Modi’s voting spectacle in Gujarat draws fire from Congress and Mamata” The Telegraph India, December 06, 2022. https://www.telegraphindia.com/india/narendra-modis-voting-spectacle-in-gujarat-draws-fire-from-congress-and-mamata/cid/1902180.  
  4. Rangin Pallav Tripathy, “Supreme Court Collegium and Transparency” Economic & Political Weekly May 29, 2021. https://www.epw.in/journal/2021/22/insight/supreme-court-collegium-and-transparency.html
  5. EPW Engage, “Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency and Accountability” https://www.epw.in/engage/article/collegium-system-indian-judiciary-needs-be#:~:text=Without%20a%20transparent%20process%20of,act%20in%20a%20transparent%20manner. 
  6. Krishnadas Rajagopal, “Supreme Court questions ‘lightning speed’, 24-hour procedure appointing Arun Goel as Election Commissioner” November 24, 2022. https://www.thehindu.com/news/national/supreme-court-questions-appointment-process-of-election-commissioner-arun-goel/article66177483.ece. 
  7. Umang Poddar, “Interview: Why the Election Commission’s appointment is being questioned by the Supreme Court” December 02, 2022 https://scroll.in/article/1038308/interview-why-the-election-commissions-appointment-is-being-questioned-by-the-supreme-court. 
  8. M Mohsin Alam Bhat, “Governing Democracy Outside the Law: India’s Election Commission and the Challenge of Accountability” Asian Journal of Comparative Law, 16 September 2022. https://www.cambridge.org/core/services/aop-cambridge-core/content/view/85D606E872CE3FD16077C2170621196D/S2194607821000302a.pdf/div-class-title-governing-democracy-outside-the-law-india-s-election-commission-and-the-challenge-of-accountability-div.pdf.  
  9. Khosla, Madhav, Judicial Accountability and Independence (2019), 17 May 2019 Re-forming India: The Nation Today, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3374484. 
  10. Atul Dev, 01 July 2019 The Caravan “In Sua Causa: What the judiciary has done to itself” https://caravanmagazine.in/law/what-judiciary-done-itself. 

Author

saranyaravindran@nalsar.ac.in