A recent P.I.L. in the Supreme Court seeking the inclusion of the Chief Justice of India to the election panel of the members of the Election Commission of India has started yet another debate on the doctrine of separation of power and themes such as independence of the Election Commission from the executive. This paper seeks to compile the basis of the above legal actions, the past and present of what the Apex Court had to say on the issue, and finally shed some light on the legal dilemmas that the Court deliberated upon while delivering its verdict. 

KEYWORDS:

Election Commissioner, Supreme Court of India, Chief Justice of India, Chief Election Commissioner, Anoop Baranwal, Union of India.

INTRODUCTION:

On 2^nd January 2024, Congress leader Jaya Thakur approached the Supreme Court of India against the legality of Sections 7 and Section 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The above legislation came into effect via presidential assent during the winter session of the Indian Parliament. Thakur has argued the removal of the Chief Justice of India from the Election Commission selection panel, as seen in Section 7 of the Act, essentially overturning the judgement delivered by the Supreme Court on 2^nd of May 2023, headed by K.M. Joseph J. along with Aniruddh Bose, Hrishikesh Roy, C.T. Ravikumar and Ajay Rastogi, JJ.

The new Election Commissioners Act has replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. This new legislation brings important changes to top election officials’ appointment, salary, and removal procedures. The most notable feature of the new law is that the President will appoint election commissioners based on a recommendation from a selection committee. This committee will consider candidates proposed by a search committee led by the Union Law Minister. The selection committee will be composed of the Prime Minister, a Union Cabinet Minister, and either the Leader of the Opposition or the Leader of the largest opposition party in the Lok Sabha, as per Section 7 of the Act. Another important change is with reference to Section 8 of the Act, according to which the selection panel shall “regulate its own procedure in a transparent manner for selecting the Chief Election Commissioner or other Election Commissioners.”

The petitioner, Smt. Jaya Thakur, the general secretary of the Mahila Congress Committee for the state of Madhya Pradesh, has further contended that inter alia, the removal of the Chief Justice of India from the selection panel is a violation of the principles of free and fair elections and that it violated Article 14, 21, 50 and 324 of the Constitution. This contention is based on the Supreme Court’s earlier judgement in Anoop Baranwal vs. Union of India (2023), which directed the inclusion of the Chief Justice of India, along with the Prime Minister and the leader of the opposition.

For reference, the Supreme Court, in Anoop Baranwal v. Union of India (2023), had directed that the panel for selection of Election Commissioners and the Chief Election Commissioner shall include the Chief Justice of India, along with the Prime Minister and leader of the opposition. The Court, while showing apprehension, had observed that several political parties came into power, but none of them enacted any legislation to fill this ‘lacunae’ in the law. The Court was of the opinion that in order for the Election Commission to shed its duties, it was imperative that it remained independent/ ‘aloof’ from any subjugation or dependency of the executive.

The following content is an analysis of the legal nuances behind the P.I.L., primarily deriving from the Supreme Court’s prior judgement on 2nd May last year. The ethical and legal implications are the focus of this paper. 

RESEARCH METHODOLOGY:

This research paper aims to be (i) primarily descriptive and (ii) secondly analytical in nature. Primary sources include copies of judgements from trusted research platforms and legislations from government websites. Secondary sources include articles from popular websites, journals, and newspapers.

LITERATURE REVIEW:

“A Democratic Republic contemplates that majoritarian forces, which may be compatible with a democracy, must be counterbalanced by protection accorded to those not in the majority”. The above was delivered by the Honourable Supreme Court in its judgement of Anoop Baranwal v. Union of India for the inclusion of the Chief Justice of India to the election panel committee. Needless to say, the independence of the Election Commission from the executive was of crucial importance to the bench while it delivered the verdict on the matter. Most notably, the decision in question, was a unanimous verdict. 

However, the Union, this time within six months, essentially overturned the above ruling by introducing the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which received presidential assent on the last week of December. 

Now, a recent PIL by Congress member Jaya Thakur has rekindled the debate about whether, by overturning the Supreme Court ruling through the legislation, the Centre has regained the edge in the panel it had prior to the Supreme Court’s intervention, and whether the aforementioned act, violates the spirit of the Constitution.

As of date, the Supreme Court has entertained the PIL but refused to put a stay on the Election Commissioner’s Act at the very outset. The Court did not dive into the merits of the case while considering the stay but simply remarked in a negative when the petitioner pleaded for a stay on the Act, remarking that no advanced copy had been submitted to the respondents i.e. the Union and the Election Commission.

The merits on which the PIL will be argued are closely linked to the facts and opinions of the Court in the Anoop Baranwal Case. Hence, there is an imperative need to understand the above case’s legal nuances to fully encapsulate the essence and basis of the petitioner’s contentions.

THE ARGUMENTS ADVANCED:

During the hearings of the matter in the month of November, the petitioners argued the following:

• The Court’s intervention in the present matter shall be based on an underlying rationale that there exists a lacuna in the matter of appointment, and such lacuna leads to the non-existence of a fundamental norm/basic feature of the Constitution and that very basic feature is the right to hold free and fair elections. An absence of that fundamental feature allows the court to step in to fill that lacuna. The learned counsel further highlighted cases relating to affidavits on assets, criminal antecedents, freebies, NOTA, etc., in which the Court intervened for similar reasons.
• Secondly, Shri Prashant Bhushan (one of the petitioners) made special reference to the concepts of power of reciprocity and loyalty to the appointing body, referred by the Supreme Court in Supreme Court Advocates-on-Record Association and Anr. V. Union of India. With reference to this case, the Founding Fathers of the Indian Constitution ensured the freedom of the judiciary from the executive (even though it was the executive who appointed judges in higher courts) by ensuring consultation with the Chief Justice of India and the Chief Justice of the High Court. The Constituent Assembly Debates revealed the intent to prevent political considerations from influencing judicial appointments, underscoring the importance of this consultation.
• There appears to be ad-hocism flowing from the vacuum due to legislative inaction. It was contended that the Constituent Assembly not being a ‘real elected’ body left many gaps up to the Parliament to fill, and justifiably so. Since this gap has not been filled for more than 70 years, and the right to free and fair elections is being vitiated by this, judicial intervention is warranted.

The Union emphasized that any interference by the judiciary in such matters could harm the delicate balance of separation of powers between the Legislature, the Executive, and the Judiciary. 

• The Attorney General remarked that an aspirational ideal of the petitioners on the model of selection of the members of the Election Commission could not form a foundation for the Supreme Court to make forays into the workings of constitutional provisions as it would inevitably amount to judicial overreach. Furthermore, accepting the petitioner’s contention would involve nothing less than an amendment to Article 324, hinting that, it was not the prerogative of the Court. The Court was being invited to apply the principles involved in the context of ordinary statutes to the interpretation of the Constitution itself, the same not being permissible under law.
• Secondly, the Solicitor General of India argued that the validity of Article 324 cannot be considered as the same is a part of the original Constitution and that the same Constitution provides a complete machinery to deal with the appointments. The learned counsel then, went on to refute petitioners’ arguments, in which they relied on the Apex Court judgement under Vineet Narain and Ors. v. Union of India and Anr. (1998) by adding that the Vineet Narain judgement was not dealing with a constitutional provision but rather a statutory one. It was greatly urged before the Court to exercise judicial restraint and that a causus omissus does not justify judicial interference.
• Lastly, the Additional Solicitor General contended that there is no vacuum or trigger. Unlike the position obtained in Vishakha, no dire need is made out in the present case.

For the sake of clarity, the broad set of contentions have been enumerated below, with the petitioners arguing ‘Yes’ and the respondents ‘No’ in the following:

• Is it within the Court’s jurisdiction to interfere with the appointment of Election Commission members, which is an executive function?
• Does the appointment process undermine the right to free and fair elections?
• Importantly, is there a legal vacuum for the Courts to take over?
• Is there a need for the legislature to step in and fill that vacuum?
• Does the current appointment process violate the fundamental rights of citizens?

VERDICT:

The Supreme Court, inter alia, in its relief, declared the Chief Justice of India to be a part of the selection committee along with the Prime Minister and the leader of the opposition. The above was to be followed until the legislature came up with an Act on the same.

THE LEGAL QUOTIENT:

Will there be a violation of the principle of separation of powers if the judiciary were to intervene in this matter?

The Supreme Court of India has pointed out numerous cases that, under exceptional circumstances, particularly those involving the interest of the nation or her people, judicial activism is a useful adjunct to democracy. However, the Courts have also hastened to add that judges should not become ‘activists’. Unlike the United States of America or Australia, India has no strict demarcation on the separation of power. However, a judge-made law through an interpretive process is widely recognized in India and beyond for the enforcement of the rights enshrined in the Constitution for the people. 

An important key to the above question would be the case of Vineet Narain and Ors. v. Union of India and Anr. (1998). In this case, the Supreme Court, through constitutional interpretation, expanded the ambit of its powers. The Court established a vital precedent by providing detailed directions to the executive and formulating guidelines to address a legislative vacuum concerning public corruption. No branch of Government is entitled to usurp the powers of the other, even if it is a bona fide action; however, it is their prerogative to act within bounds and deliver their essential functions to cloth and preserve the people of their fundamental rights. In the present case, the Court itself affirmed that where a veritable gap or lacuna exists, it is the duty of the Court to intervene and shed its duties.

It is also important to note that the Founding Fathers of our Constitutions clearly contemplated a law by the Parliament to fill this very lacuna which presented itself in the case, as they deemed the Parliament better equipped with the legitimacy and power to do so. The sanctity of institutions of Government, which they sought to provide, however, remained unfulfilled till the intervention of the Supreme Court 70 years later.

In the judgement, K.M. Joseph J. has observed that the Supreme Court has plenary power under Article 142 to issue directions to do ‘complete justice’. In addition to this, we can find 64 references in the speech made by Dr. B.R. Ambedkar, noting that the Drafting Committee had tried to employ processes to prevent misuse of power. Similar instances can be found in Lakshmi Kant Pandey v. Union of India (1984), Prakash Singh and Ors. v. Union of India and Ors. (2006), Vishaka and Ors. v. State of Rajasthan and Ors. (1997), etc. A very recent and relevant example can be found in the case of Laxmi v. Union of India and Ors. (2014), in which the Honourable Court laid down guidelines for the sale of acid and the treatment of its victims.

Why did the Court have to step in?

In his speech during the Constituent Assembly debates, Dr. B.R. Ambedkar noted that social democracy is a way of life that recognizes the trinity of three principles: liberty, equality, and fraternity. To separate one from the other would defeat the purpose of democracy. One of the heads of democracy is sovereignty, which almost inseparably encapsulates the right to free and fair elections. When this chain of fundamentals is disturbed, or there exists a gap in it, it is the duty of the legislature or the executive to fill this lacuna by either enacting proper legislation or exercising executive powers. However, when these branches of the government fail to fulfil this purpose, the courts have a duty and authority to step in and fill this cavity in law. 

In the case of Chaudhari vs. State of Punjab and Ors. (2001), the Supreme Court has established a principle of law that debates in the Constituent Assembly can be used as a reference to interpret any Constitutional provision. This is because it is the responsibility of the Courts to determine the intention of the Constitution’s framers.

Thus, in the present case, Ajay Rastogi J. observed that “what emerges from this discussion is that both Article 324 and the Act, 1991 are silent on the selection process of the Chief Election Commissioner and the Election Commissioners.” During the constituent debates, the House believed that in the interest of purity and freedom of elections, it was of the utmost importance that the Election Commission be freed from any type of influence leaking from the executive. 

The concept of the legitimate power of reciprocity:

Even though it is clear as to why it is important for the Election Commission to be independent from the Executive, we may as well acquaint ourselves with the principle of legitimate power of reciprocity. In one of his works, Robert Cialdini gives six principles of influence, the first one being reciprocity. The idea is simple: we pay back what we receive from others. The appointed members, even if allowed to be polluted by a hint of ‘yesmanship’, would countermand the virtue of sanctity which the Founding Fathers envisioned in the Constitution and its organs. During the constituent debates, Shibban Lal Saxena pointed out that if it solely rested on the President to appoint this Commission, that power would de facto fall into the hands of the Prime Minister. The same cannot be allowed.

Why Chief Justice for the panel?

The Court had investigated various commissions to look for the manner of appointment with respect to Chief Election Commissioners and Election Commissioners. Dinesh Goswami Commission (1990) and the 255^th Law Commission Report (2015) stood out as they recommended, inter alia, the inclusion of the Chief Justice of India in the panel for the selection of Chief and the Election Commissioners. Similarly, the Court looked into world trends and practices for appointing election-conducting bodies, with the Federal Democratic Republic of Nepal resembling a similar model. In addition, the Delhi Special Police Establishment Act, 1946, and the Lokpal and Lokayukta Act, 2013, for the election of the Director of C.B.I. and Lokpal, respectively, showed similar resemblances so far as the inclusion of the Chief of India was concerned. 

The essential aim of the selection committee is to have both representation and impartiality. While the Prime Minister and the opposition leader may have their inclinations, a lawman, particularly one representing the head of the Indian Judiciary, seems fair-trade. “without fear or favour, affection or ill-will” are the words the Chief Justice has to live by while he/she takes the oath to uphold the Constitution.

SUGGESTIONS:

While the Supreme Court had declared its stance on the matter in the preceding judgements, the Union does not see eye to eye with the Apex Court. Regardless, what the Government should strive for, is the fulfilment of the will of the Founding Fathers of our Constitution. Jairamdas Daultaram believed that the Election Commission should be so constituted that it would function as an impartial body and serve to inspire confidence among all parties. Although there were varying opinions on the matter, the intention of the Constituent Assembly can be decoded through its legislation. At the very outset, leaders such as Hriday Nath Kunzru, Shibban Lal Saxena or the Minority sub-committee, depicted their intentions of seeing the Election Commission as independent in character; it was left to the Parliament to actually formulate legislation on the issue. They entrusted the legislature to act in all fairness and prudence and enact legislation on the same. For the time being, the draft Article 289 (now Article 324) and an Instrument of Instructions were ceded to the President. 

For 70 years, a gap was allowed to exist. The Supreme Court in its verdict, hinted that it is the legislature that has the proper authority on the matter, and the remedy it offers is ad interim. If the idea of the Chief Justice sitting on the selection panel keeps the Centre on tenterhooks and it seeks to appoint some other person on the committee, it should at the very least endeavour and seek to preserve the balance, the integrity, the independence and the sanctity that the Constitution makers anticipated.

CONCLUSION:

Only time will tell the fate of the current P.I.L. on the matter. From the introduction of the P.I.L., through the ruling, and lastly to the legal principles, we explored two key points. (i) what the Supreme Court interpreted in the case and (ii) what the Forefathers wished for while drafting this piece of legislation, which we now call ‘the Constitution’. The law is what the Supreme Court interprets it to be, but there also exists a duty on the part of the Legislature and the Executive. While the Supreme Court defends the Constitution, the Executive applies it, and the Legislature extends it. It is the duty of the trinity of these to seek, protect and preserve the Constitution. Only through their harmonious collaboration can the true spirit and intent of our legal foundations persist and adapt to the evolving needs of our society.

References

(n.d.). Retrieved from Livelaw: https://www.livelaw.in

ESCR-Net. (n.d.). Vineet Narain and Others v. Union of India and Another, 1 SCC 226. Retrieved from ESCR-Net: https://www.escr-net.org/caselaw/2015/vineet-narain-others-vs-union-india-another-1-scc-226#:~:text=Summary%3A,source%20linked%20to%20suspected%20terrorists.

Government of India ,Ministry of Law and Justice, Legislative Department. (1990). Report of the Committee on Electoral Reforms. Delhi: Ministry of Law and Justice.

India Code. (2023, December). The Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Act, 2023. Retrieved from India Code: https://www.indiacode.nic.in/handle/123456789/19721?view_type=search&sam_handle=123456789/1362

Kashyap, G. (2022). ECI Appointments: Arguments Matrix. Supreme Court Observer.

Supreme Court Observer. (2023). Election Commission Appointments. Supreme Court Observer.

Vinayan Singh

Dr. Ram Manohar Lohiya National Law University (RMLNLU), Lucknow