DATE OF JUDGEMENT: 2nd March, 2023.
PETITIONER: Anoop Baranwal
RESPONDENT: Union of India
BENCH: Honourable Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar
LEGAL PROVISIONS: The Constitution of India
CITATION: W.P.(C) 114/2015
Several Public Interest Litigations (PIL) were filed in the Supreme Court to review the manner of appointment of the Election Commission of India (ECI) in the light of Article 324. Article 324(2) provides that the Chief Election Commissioner (CEC) and other Election Commissioners would be appointed by the President of India. Appointments would be made in accordance with the law made by the Parliament on this subject. This provisions contemplates that the Parliament lays down a law prescribing the method by which the Election Commission has to be appointed. However, the Parliament has made no law in this regard even after almost seven decades. The appointments were made on the advice of the Council of Ministers which is headed by the Prime Minister. The petitioners claimed that the absence of any law affected the independence of the Commission. They demanded the apex court to direct the Parliament to formulate a law for the appointment or constitute a body for making recommendations for appointment to ensure the neutrality and transparency of the Election Commission.
- Is there a legal vacuum in Article 324(2)? If there is a gap, then should the Court intervene to fill the gap?
- Whether the safeguards given to the Chief Election Commissioner should be extended to the other Election Commissioners?
The Petitioners contended:
- There exists a legal vacuum in the absence of any law which lays down the eligibility of an Election Commissioner. The judiciary must intervene to fill the gap as free and fair elections are an essential feature of a democracy. A democracy could function only when elections are conducted by an independent body.
- The Supreme Court has intervened to pronounce reformative judgements in electoral issues like in the case of trial of MPs/MLAs, declaration of assets, NOTA or prevention of booth capturing.
- Advocate Prashant Bhushan submitted that the existing mechanism for appointments is inconsistent with Article 324(2). It also violates Article 14 as it is arbitrary.
- Right to vote is a constitutional right which is violated when elections are not being conducted by a neutral Commission.
- The Election Commission is empowered to resolve various quasi-judicial between parties. It has the power to register political parties, allot symbols, to enforce the moral code of conduct. In many cases the ruling government is party involved in the dispute. Executive as a sole participator in the appointment will make its decisions biased. Petitioners relied on Supreme Court Advocates-on-Record and anr. v. Union of India to substantiate their argument.
- References were made to the Report of Justice Madan Lokur which highlights the inconsistency of the ECI in implementing the moral code of conductand 255th Law Commission Report which proposed several electoral reforms including the appointment of ECs on the recommendation from a three-member committee.
- There has been a trend of appointing older candidates as ECs thereby shrinking their tenure. The independence of the Commission depends upon its appointment procedure. A majority of Commissioners have been ex-bureaucrats. Appointment made by the Executive alone makes it a partisan body and a branch of the executive.
- The petitioners advocated for constituting a collegium like committee to recommend names to the Election Commission to ensure its independence. They also advocated that the same protection must be extended to the EC as is available to the CEC in the light of Article 324(5).
The Respondents contended:
- The Learned Attorney General of India opposed the argument that there is any legal vacuum in EC appointments. The Constitution provides a mechanism to make appointments and Article 324(2) cannot cast a constitutional duty on the Parliament to make a law.
- The respondent emphasized the practice of judicial restraint in legislative subjects. The Court’s intervention in this matter would violate the doctrine of separation of powers. The Court must intervene to lay down guidelines only when a fundamental right is involved. Matters related to policy must be kept immune from judicial intervention.
- Constituting a committee to recommend names for the ECI would be against the process of the President acting on the advice of the Council of Ministers provided under Article 74. Relying on the judgement in T.N. Seshan v Union of India, they submitted that the President is the appointing authority for Election Commission.
- The Government has been appointing the members from the civil services because they are considered the most fit to be inducted as Elections Commissioners.
RATIONALE AND JUDGEMENT
In the exercise of its powers conferred under Article 142 of the Constitution, the five-judge bench unanimously laid down guidelines to regulate the selection of the members of the Election Commission. The Supreme Court gave directions to constitute a three-member Committee to make the recommendations until a law has been made by the Parliament. The Committee shall comprise of:
- the Prime Minister,
- the Leader of Opposition in Lok Sabha or if he is unavailable the leader of the largest opposition party in Lok Sabha and
- the Chief Justice of India
The Court justified its decision on the grounds of judicial activism which provides that the judges must play an active role to protect and uphold the rights of the citizens in a democracy. The apex court discussed the concept of judicial activism which runs parallel to separation of powers. An activist approach complements the democracy by addressing the needs of the weaker sections of the society. J. Rastogi said that the Court’s power to lay down guidelines emanates Article 142 under which the Supreme Court can issue any order to ensure complete justice.
On an analysis of the Constituent Assembly Debates, it was concluded that framers of the Constitution had reached a consensus that the law regarding appointment must be made by the Parliament. In the absence of any law and the appointment made with the absolute discretion of the executive would necessarily pave the way for the abuse of power. It undermines the core values of a democracy and the rule of law.
Referring to landmark verdicts in Vishaka v. State of Rajasthan and the Third Judges case, the Court reiterated the instances when it had entered to fill the gaps to serve justice keeping in mind the larger public interest. The interpretations of the Constitution must evolve to meet the future aspirations.
Making a law is a power and cannot be compelled. The Court did not issue a mandamus to the Parliament to make a law. A legislation is imperative to breathe life into Art 324(2). The growing trend of criminalisation of politics and the influential role of money in elections further make it necessary that the EC is a non-partisan body.
On the issue of extending the same protection to EC as is given to CEC, it was observed that the only distinguishing feature is that the conditions of service of CEC cannot be varied to his disadvantage after appointment. This safeguard is not extended to the other ECs. However, this alone does not make him a mere advisory member. It does not mean that the CECs decisions on all matters is final. Reference was made to the Background Paper on Electoral Reform, Ministry of Law & Justice also recommended constitutional protection to other ECs. It was held that it is imperative to shield the office of Election Commissioner from executive interference. Therefore, the Court extended the safeguards given to CEC to other ECs.
With respect to the right to vote, the Court observed upon a lengthy discussion on the Constitutional Assembly Debates that founding fathers created a constitutional right to vote for the adult citizens under Article 326. It can be restricted on the grounds of disqualification as mentioned therein. The Court reiterated its ruling in PUCL case where it was held the freedom to vote is a form of expression under Article 19(1)(a).
DEFECTS OF LAW
The judgement depicts an unwarranted transgression into the legislative sphere. The Constitution framers had bestowed the power to make a law regarding EC appointments on the Parliament because it is elected by the people of India. The Courts have no authority to make guidelines to fill in for the legislature’s inaction. This court has overreached its boundaries and interfered in the task of law-making which is the function of the Legislature. This is a violation of the doctrine of separation of powers
Elections are the cornerstone of a democracy which is the part of the basic structure of our Constitution. Free and fair elections conducted by a neutral and impartial Election Commission are essential for the smooth functioning of a democracy. This judgement is a step to secure the independence of the Commission. It has to be insulated from executive interference. In a first, the Supreme Court laid down norms with respect to a constitutional provision.
The apex court is playing an activist role by filing the gaps resulting from legislative inaction. However, the delicate balance of separation of powers also has to be maintained. Judicial activism should not transform into judicial overreach because it is not in consonance with the principles of the Constitution. Restraint on the part of the courts maintains stability in the judiciary by fostering inter-branch equality.
Name: Ananya Tiwari
College: University of Lucknow
 INDIA CONST. art. 324, cl. 2.
 Anoop Baranwal v. Union of India WP(C) 104/2015
 Supreme Court Advocates-on-Record and anr. v. Union of India, (2016) 5 SCC 1
 Madan Lokur, Wajahat Habibullah, et.al. Citizens’ Commission on Elections’ Report on EVMs and VVPAT 2022 Economic & Political Weekly (last visited 20th September, 2023) https://www.epw.in/journal/2022/3/perspectives/citizens%E2%80%99-commission-elections%E2%80%99-report-evms-and.html
 Law Commission of India, Strengthening the Office of the Election Commission of India Report No. 255, 2015 https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081635.p d
 INDIA CONST. art. 324, cl. 5.
 INDIA CONST. art. 74.
 T.N. Seshan, Chief Election Commissioner of India v. Union of India and ors, (1995) 4 SCC 611
 INDIA CONST. art. 142.
 Vishaka v. State of Rajasthan, (1997) 6 SCC 241
 Special Reference No. 1 of 1998, Re (1998) 7 SCC 739
 Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3 Measures for Election Commission, at pg. 19 https://lawmin.gov.in/background-paper-electoral-reforms
 People’s Union of Civil Liberties v. Union of India, (2003) 4 SCC 399
 INDIA CONST. art. 19, cl. 1(a).