Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Soumyabrata Chakraborty, a second-year law student at Gujarat National Law University, Gandhinagar, Gujarat.
Last Thursday, March 2nd, the Supreme Court of India (SCI) pronounced its judgment in the case of Anoop Baranwal v. Union of India. The five-judge Constitution Bench, headed by Justice KM Joseph, unanimously held that appointments to the constitutional posts of Chief Election Commissioner and Election Commissioners are to be made by the President of India, on the basis of the advice of a three-member committee, comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, i.e. the lower house of the Parliament (or Leader of the largest party in Opposition in the lower house, in absence of a Leader of Opposition), and the Chief Justice of India (CJI). The Court’s judgment came after a number of petitions were filed asking for measures to ensure the independence of the Election Commission (EC) (previously covered by JURIST). Justice KM Joseph delivered his judgment on behalf of the majority and Justice Ajay Rastogi delivered a judgment concurring with the majority while discussing the questions of law involved, followed by his reasoning.
Article 324 of the Constitution of India provides for the Election Commission, and Article 324(1) vests the powers of “superintendence, direction and control of elections” in the EC. Article 324(2) states that appointments to the EC are to be made by the President, subject to any law framed by the Parliament in this regard. Article 324(5) further authorizes the President to determine the conditions of service and tenure of the Election Commissioners, again, subject to any law made by the Parliament. Notably, a law has been framed by the Parliament with respect to Article 324(5)- the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, however, no such law has been promulgated under Article 324(2)- concerning appointments to the Election Commission of India (ECI)- despite the constitutional expectation.
Two of the major contentions voiced by the government questioned the jurisdiction of the SCI in hearing the petitions and argued that doing so would be violative of the principles of separation of power. Justice KM Joseph highlighted that the right to vote flows from Article 326 of the Constitution and is thus a constitutional right; restrictions on the right must also flow from Article 326. While Justtice KM Joseph’s judgment is not so clear about how the SCI draws jurisdiction from the right to vote, being a constitutional right, Justice Ajay Rastogi described the right to vote in direct elections as a fundamental right flowing from Article 15, 17, 19, 21, subject to restrictions under Article 326. Both judgments consider the Election Commission as a constitutional infrastructure to actualise the constitutional and fundamental right to vote. This gives SCI the jurisdiction to ensure that the functioning of the EC facilitates the protection of people’s fundamental right to vote. Although Justice Rastogi’s reasoning is sound in terms of establishing jurisdiction, I believe that it is complex with regard to how the right to vote flows from Article 17, which provides for protection against untouchability.
The two opinions are detailed chronicles of the history of the Election Commission, its powers and functions. Starting from the Constituent Assembly Debates to the post-independence evolution of the EC. The five-judge bench looked for historical and structural arguments throughout the stretch. A thorough reading of the Constituent Assembly Debates makes it clear, Justice Joseph concluded, that the framers of the Constitution intended that “the election machinery should be outside the control of the executive government”. However, the Constituent Assembly couldn’t reach a consensus, as to how this would be achieved, and left the job to the Parliament. Unsurprisingly, no law has been made on this behalf. No executive would ever want to make a law limiting its power and control over the machinery that governs its election. This highlights a weakness in the design of the Indian Constitution and naivety in the approach of the framers. It is quite clear that the Constituent Assembly intended to keep appointments to the EC outside the sole prerogative of the executive, however, instead of constitutionalizing an appointment procedure, it delegated the task to the executive itself.
The judgment alters the present mode of appointment, where the CEC and Election Commissioners are appointed by the President, on the advice of the Prime Minister. However, the mode of appointment directed by the SCI does not find any place in the Indian Constitution and can be challenged by the executive as judicial activism or judicial overreach.
The appointment procedure directed by the SCI is not a new concept. Over the years, several committees have recommended a similar setup for appointments to the ECI (previously covered by JURIST). Notably, this mechanism is already followed for the appointments of the Central Vigilance Commissioner, the Chief Information Officer, the Central Bureau of Investigation (CBI) Director and the head of the Enforcement Directorate (ED). The effectiveness of this appointment procedure in ensuring independence remains under question mark. In the recent past, there have been several instances of averments made on the CBI and ED to be political tools of intimidation used by the Union government. Furthermore, the three-member committee has not had the best track record with regard to the appointment of the CBI Director. Whether this new appointment procedure will be able to bolster trust and confidence among different stakeholders, on the Election Commission and its impartiality, needs to be seen. For now, the Opposition has welcomed the Supreme Court ruling.
The role of the CJI in the three-member committee is also questionable in terms of its effectiveness in ensuring impartiality in appointments. Whether the CJI’s involvement can be considered as a hallmark of neutrality remains under a question mark. Further, the CJI’s presence may lead to a pre-emptive assumption of the legitimacy of all appointments and thus affect judicial scrutiny of any error in such appointments, going ahead.
The Supreme Court also deliberated on two other aspects – the tenure of the Election Commissioners and the grounds for their removal. Justice Joseph noted that, since 2004, successive governments seemed to have deliberately picked people who never got to fulfill their prescribed six-year term (previously covered by JURIST). The Supreme Court observed that the appointment of an Election Commissioner with a tenure of fewer than six years is a clear breach of law pursuant to the provisions of the Act of 1991. With regards to the removal of the Election Commissioners, Justice Rastogi differed from the majority judgment, observing that the grounds for removal of the Election Commissioners shall be the same as that of the CEC, subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India. This is especially significant in light of the mystery surrounding the resignation of former Election Commissioner Ashok Lavasa after he flagged violations of the Model Code of Conduct by Prime Minister Narendra Modi in the 2019 General Elections. The executive should not have any influence to persuade an Election Commissioner to resign.
Looking at the right to vote as a constitutional and fundamental right, and the Election Commission as a constitutional instrument for the actualisation of that right, one appreciates the perils of leaving appointments to the ECI at the sole discretion of the executive, which almost always has a direct interest in the electoral proceedings. In light of this, I believe that this decision is a commendable step towards ensuring impartiality and neutrality in appointments to the ECI, and in espousing the intent of the framers of the Constitution. Article 324(2) vested the Parliament with the job of framing a law to determine the appointment procedure, and to that effect, SCI’s directions are temporary in nature, until the legislative vacuum is filled. However, the judgment will have a precedential value in that any law passed under Article 324(2) will be tested on the touchstone of whether it adequately protects the independence of the Election Commission from the executive. As far as the effectiveness of this scheme of appointment is concerned, the track record of this three-member committee has not been impressive, and it remains to be seen whether the state of the ECI remains the same, improves or worsens.
