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
FACTS
The issue of the Election Commission’s appointment process has sparked significant debate in India, drawing attention to the constitutional mandate outlined in Article 324(2). This provision places the responsibility of appointing the Chief Election Commissioner (CEC) and other Election Commissioners squarely on the President of India, subject to legislation that Parliament is expected to enact. However, despite the clear directive, Parliament has yet to formulate a specific law governing these appointments, leaving a void that has led to appointments being made based on recommendations from the Council of Ministers, particularly the Prime Minister.
The petitioners in several PILs have raised concerns over this state of affairs, contending that the absence of a legislative framework undermines the independence and impartiality of the Election Commission. They argue that the current practice, where appointments are essentially influenced by the ruling political establishment, risks compromising the Commission’s role as a neutral arbiter in the democratic process.
Central to their argument is the need for transparency and a structured process that shields the Election Commission from undue political influence. They have urged the Supreme Court to intervene and instruct Parliament to fulfill its constitutional obligation by enacting a law that clearly delineates the appointment procedure. Such a law, they posit, would not only ensure the Commission’s autonomy but also enhance public trust in the electoral process.
Moreover, the petitioners have proposed alternatives, such as the establishment of an independent body tasked with recommending appointments to the Election Commission. This, they argue, would mitigate concerns regarding executive influence and strengthen the institution’s ability to operate impartially.
As these PILs progress through the judicial system, they highlight broader issues regarding constitutional governance and the separation of powers. The outcome of these cases could potentially redefine the framework within which electoral oversight operates in India, impacting the integrity and credibility of future elections.
ISSUES RAISED
Regarding Article 324(2), there is indeed a perceived lack of legal clarity regarding the appointment process of the Chief Election Commissioner (CEC) and other Election Commissioners in India. The provision stipulates that the President of India shall appoint these officials, subject to legislation enacted by Parliament. However, despite the constitutional mandate, Parliament has yet to enact specific legislation governing these appointments, leaving room for ambiguity and potential political influence in the selection process.
In situations where there exists ambiguity or an absence of legislative guidance, the role of the judiciary becomes pivotal. The judiciary, as the custodian of the Constitution and protector of fundamental rights, may step in to interpret and clarify constitutional provisions to ensure their effective implementation. This includes filling gaps in legislation when necessary to uphold the principles of fairness, independence, and transparency, especially in critical institutions like the Election Commission.
Expanding protections to include all Election Commissioners, not just the Chief Election Commissioner, is a matter of ensuring parity and safeguarding the integrity of the Commission as a whole. While the Chief Election Commissioner enjoys certain statutory protections to ensure independence in decision-making, extending similar protections to other Election Commissioners could further fortify the Commission against external pressures and political interference. This move could potentially enhance the Commission’s ability to function impartially and uphold its constitutional mandate of overseeing free and fair elections in India.
In conclusion, while Article 324(2) may lack explicit legislative clarity, the judiciary can play a crucial role in interpreting and ensuring its effective implementation. Additionally, expanding protections to all Election Commissioners could strengthen the Election Commission’s independence and resilience against undue influence, thereby bolstering democratic processes in the country.
CONTENTIONS
The Petitioners contended:
- In the absence of a law specifying the qualifications of an Election Commissioner, a legal gap exists. It is crucial for the judiciary to step in and address the void because democratic systems rely on open and just elections. A democracy can only operate effectively if elections are carried out by a neutral organization.
2. The Supreme Court has stepped in to deliver reformative decisions in electoral matters such as the trial of MPs/MLAs, disclosure of assets, NOTA, and the prevention of booth capturing.
3. Prashant Bhushan argued that the current appointment process does not align with Article 324(2). It violates Article 14 by being arbitrary.
4. The constitutional right to vote is infringed upon when elections are not overseen by an impartial Commission.
5. The Election Commission has the authority to settle different quasi-judicial disputes among parties. It is able to officially recognize political parties, assign symbols, and enforce ethical behavior. Often, the governing administration is directly implicated in the conflict. The executive making decisions on its own in the appointment process will lead to biased outcomes. Petitioners used the case of Supreme Court Advocates-on-Record and anr. v. Union of India[3] to support their claim.
6. Citations were made to Justice Madan Lokur’s Report [4], which points out the ECI’s inconsistency in enforcing the moral code of conduct, and the 255th Law Commission Report [5], which suggested various electoral reforms such as selecting ECs based on recommendations from a three-member committee.
7. A pattern has emerged where older candidates are being chosen as ECs, resulting in shorter terms for them. The appointment procedure is crucial for ensuring the Commission’s independence. Most of the Commissioners used to be bureaucrats. When the Executive is solely responsible for making appointments, the body becomes partisan and essentially an extension of the Executive branch.
8. The petitioners pushed for the establishment of a committee resembling a collegium to make recommendations.
The Respondents contended:
1..The Attorney General of India, who is knowledgeable, disagreed with the claim that there is no legal gap in EC appointments. The Constitution gives a process for making appointments and Parliament is not constitutionally obligated to create a law under Article 324(2).
2. The person being interviewed highlighted the importance of exercising judicial restraint when it comes to legislative matters. The Court interfering in this situation would breach the separation of powers principle. The Court is required to step in and establish rules only in cases where a fundamental right is at stake. Policy issues should be protected from interference by the judiciary.
3. Forming a committee to suggest names for the ECI would go against the President’s requirement to follow the Council of Ministers’ advice as stated in Article 74[7]. Referring to the decision in T.N. Seshan v Union of India[8], they argued that the President is the one who appoints the Election Commission.
4. The civil services members are being chosen by the Government as they are seen as the most suitable candidates to serve as Elections Commissioners.
DEFECTS OF LAW
The recent judicial ruling has stirred controversy by venturing beyond its judicial purview into the domain of legislative prerogative. According to the Constitution, Parliament holds the mandate to formulate laws governing the appointment of Election Commissioners, an authority vested in it by the framers of the Constitution as representatives elected by the citizens of India. However, the judiciary’s attempt to impose directives due to the absence of parliamentary legislation constitutes an overreach and a breach of the sacrosanct principle of separation of powers.
Critics argue that the judiciary, by stepping in to fill the legislative void, has undermined the foundational structure of governance envisioned by the Constitution. The separation of powers ensures that each branch of government—legislative, executive, and judicial—operates within its designated sphere to prevent concentration of power and protect individual liberties. By assuming a legislative role in prescribing rules for Election Commission appointments, the judiciary has blurred these lines and raised concerns about judicial activism.
Proponents of the ruling contend that it addresses a critical gap in governance, ensuring that institutions crucial to democratic processes, such as the Election Commission, operate independently and transparently. They argue that until Parliament acts to establish a clear framework, the judiciary has a duty to safeguard constitutional principles and ensure accountability in the absence of legislative action.
The ongoing debate underscores larger questions about constitutional interpretation and the balance of powers in a democratic system. It calls for a nuanced consideration of institutional roles and responsibilities to uphold the rule of law while respecting the autonomy of each branch of government. Ultimately, the resolution of this controversy will have profound implications for the governance structure and democratic ethos of India.
INFERENCE
Elections are fundamental to a democracy and are an integral part of our Constitution’s basic framework. Unbiased and impartial Election Commission is crucial for successful democracy through conducting free and fair elections. This ruling is a measure taken to ensure the autonomy of the Commission. It must be protected from interference by the executive branch. For the first time, the Supreme Court established guidelines regarding a constitutional provision.
The highest court is actively filling in gaps left by the lack of action by lawmakers. Nevertheless, it is important to uphold the fragile equilibrium of the separation of powers. Judicial activism should not transition into judicial overreach as it goes against the Constitution’s principles. Judicial restraint promotes balance among branches, ensuring stability in the judiciary.
NAME: Sunit Singh
COLLEGE: Jindal Global Law School
FOOTPRINTS:
[1] INDIA CONST. art. 324, cl. 2.
[2] Anoop Baranwal v. Union of India WP(C) 104/2015
[3] Supreme Court Advocates-on-Record and anr. v. Union of India, (2016) 5 SCC 1
[4] 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
[5] 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
[6] INDIA CONST. art. 324, cl. 5.
[7] INDIA CONST. art. 74.
[8] T.N. Seshan, Chief Election Commissioner of India v. Union of India and ors, (1995) 4 SCC 611
[9] INDIA CONST. art. 142.
[10] Vishaka v. State of Rajasthan, (1997) 6 SCC 241
[11] Special Reference No. 1 of 1998, Re (1998) 7 SCC 739
[12] 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
[13] People’s Union of Civil Liberties v. Union of India, (2003) 4 SCC 399
[14] INDIA CONST. art. 19, cl. 1(a).
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