Legal scholar Gautam Bhatia says the controversy and debate surrounding the government’s Bill creating a mechanism for the selection of the Chief Election Commissioner and other Election Commissioners “misses the point”. This Bill was tabled in the Lok Sabha in the last session.Bhatia says the key concern is not whether the Chief Justice is part of the panel that appoints the CEC and EC but that the process must be independent of the government and not in any way dominated by the government.In a 20-minute interview to Karan Thapar for The Wire, Bhatia explains that the Supreme Court’s key concern in the Anoop Baranwal case was that the mechanism to appoint Chief Election Commissioners and other Election Commissioners must secure the independence of the Election Commission. That can only be done by a non-partisan or multi-partisan appointment mechanism.It will not happen if the mechanism is dominated by the Prime Minister and another minister appointed by the PM. Equally, it’s not essential that the Chief Justice should be part of the mechanism. That is a matter of detail.The debate in India has so far focused on the exclusion of the Chief Justice from the appointment mechanism rather than on the need to ensure that the mechanism is independent of the government and not influenced by it. Only then can the mechanism ensure the independence of the Election Commission.Bhatia discusses what happens in other major parliamentary democracies and whether the appointment of a Search Committee to put forward a panel of five candidates to the selection committee headed by the PM alleviates the concerns that have been raised. He discusses two points made by former CEC S. Y. Quraishi. First, that the inclusion of the Chief Justice in the appointing panel could create problems if there is a challenge because it would then automatically go to him and create a conflict of interest. Second, if the government refuses to change the composition of the appointing panel should the selection be unanimous rather than based on majority?Bhatia discusses the possibility of this Bill, if it is passed, being struck down by the Supreme Court. He also discusses the need for the Supreme Court to act expeditiously if there is a challenge rather than delay matters for years, as happened with Article 370, electoral bonds and the Citizenship Amendment Act.Finally, Bhatia discusses the political morality of a government attempting to blatantly defy the spirit of democracy by dominating the appointing panel for CECs and ECs. What does this reveal of the attitude of the PM and his government to the issue of fair play?Watch the full interview here.
