In Anoop Baranwal vs Union of India – a judgment delivered on March 2, 2023 – a Constitution Bench of the Supreme Court unanimously held that the selection of the Chief Election Commissioner and the Election Commissioners would be done by a three-member Committee consisting of the Prime Minister, the Leader of the Opposition (or the leader of the largest opposition party in Parliament), and the Chief Justice of India. The Court, thus, altered the present mode of selection, where the CEC is appointed by the President, acting on the advice of the Prime Minister.
In this article, I shall excavate the reasoning of the Court.
The constitutional framework
Article 324 of the Constitution provides for the Election Commission. Article 324(1) vests the “superintendence, direction and control of elections” in the Election Commission. Article 324(2) – most relevant for our purposes – states that “… the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.” Article 324(5) – similarly – authorises the President (by rule) to determine the conditions of service and tenure of office of the Election Commissioners, again “subject to a law” made by Parliament. With respect to Article 324(5), Parliament did make a law in 1991 (the Election Commission Act of 1991). With respect to Article 324(2) – appointment – a law has never been made.
The reasoning of Justice K.M. Joseph (writing for the majority) and Justice Ajay Rastogi (concurring) broadly follows the same trajectory. First, the Justices consider Article 324 in its historical context, and find that the framers of the Constitution intended to keep the Election Commission free from executive interference; however, as they could not agree upon how to do it, they left the question for Parliament to resolve. Secondly, the Justices consider the ever-expanding scope, powers, and functions of the Election Commission, in the context of the role of free and fair elections in sustaining constitutional democracy. And third, the Justices hold that the historical argument, read with the structural argument, indicates an existing gap in the constitutional scheme, because of which the independence of the Election Commission is insufficiently protected. Consequently, the Court then steps in to fill this gap, until such time that Parliament chooses to act by passing a law. Let us consider each of these in turn.
An analysis of the history begins in paragraph 15 of Joseph J.’s judgment. On a close reading of the Constituent Assembly Debates, he finds that there was a general consensus around the proposition – pithily articulated by Ambedkar – that “the election machinery should be outside the control of the executive government” (paragraph 18). On the question of how this independence ought to be secured, members differed: Professor Shibban Lal Saksena, for example, wanted Parliamentary supermajorities to ratify the amendment. Ambedkar suggested an “Instrument of Instruction” to the President. However, while they could not command support for their proposals, a majority of the members (who spoke) appeared agreed on two things: first, that the power of appointment should not vest solely in the Prime Minister (acting through the President), as there was always the risk of appointing a “party man”; and secondly, that this fear of executive dominance could be addressed by authoring Parliament to determine the process of amendment. Ambedkar eventually drafted an amendment to this effect, which finally became Article 324 of the Constitution (paras 25 – 26).
What follows from this? According to Joseph J (and Rastogi J), what follows is that Article 324(2) ought to be interpreted consistently with the framing intent: i.e., it encodes a constitutional expectation that Parliament would pass a law, which, in its terms, would prescribe a mechanism for appointment of the CEC that would ensure their independence from the executive (paras 32-33, Joseph J).
Joseph J.’s majority judgment then goes into the tumultuous post-Independence history of the Election Commission, the famous judicial decisions of the 1980s-90s (Dhanoa and Seshan), and the post-1990s arguments for reform. This is an excellent history constitutional history lesson, although not strictly relevant for the argument at hand. One may flag, however, that the Court’s final relief – a committee comprising of the PM, the LOP and the CJI – is not new: it has its roots in some of these reform proposals (in particular, the Goswami Committee Report of 1990). It’s also interesting to note the consideration of comparative appointments processes (see alsop, Rastogi J, paragraph 107), which demonstrates how much of an outlier India is in vesting the power of appointment in the office of the Prime Minister, given that the PM will be almost always be a directly interested party in the outcome of the next election.
The structural argument in Joseph J.’s opinion consists of two parts: the nature of the right to vote, and the function of the election commission. From paragraphs 95 – 109, Joseph J examines – with no clear conclusion – the tangled judicial history on the right to vote. This has been discussed at some length on this blog before, to summarise it very briefly: a succession of early judgments held that the right to vote is purely a statutory right, and not a fundamental right. In the 21st century, this position has become more nuanced, with judgments holding that the freedom to vote in an election is protected by Article 19(1)(a) of the Constitution, but the right to vote is a “constitutional” right (located within Article 326, which guarantees that elections will be on the basis of universal suffrage). The precise implications of these distinctions in practice have yet to be worked out; but Joseph J attempts to do so by holding that the constitutional right to vote flows from Article 326 of the Constitution, and that restrictions upon that right must also flow from Article 326 (paragraphs 135 – 136, 141; Rastogi J, paragraph 46) This, in turn, allows him to ground the right within the broader concept of democracy (via periodic elections).
So now, we have the right to vote, which is central to elections and the conduct of democracy. So far, so good. Where does the Election Commission come in? On this point, Joseph J.’s judgment is not as clear as one might wish it to be, but Rastogi J.’s concurrence fills the gap (pun not intended): the right to vote cannot be actualised without an infrastructure of implementation in place (paragraphs 21, 75). This, inevitably, has to take the form of an Election Commission charged with “the superintendence, direction and control” over elections.
This link then allows us to contextualise Joseph J.’s examination of the powers of the Election Commission. As he notes, the Election Commission’s powers have expanded vastly over the years, going beyond the mere conduct of elections: to allocating party symbols, de-recognising parties, enforcing the Model Code of Conduct, and penalising parties for non-compliance (and as we have seen recently, the EC can fundamentally alter the political fortunes of parties by adjudicating on “splits” within their ranks, and that’s just one example!) (paras 150 – 160, 166 – 185); and indeed, a seal on this is put by Article 329, which sets a very high threshold before judicial bodies can interfere with the EC’s election-related decisions.
Armed with the history and the structure, Joseph J then proceeds to examine Article 324 itself. The history shows that the framers’ intention was that Parliament would make a law guaranteeing the independence of the EC from the executive (and, specifically, from Prime Ministerial appointments). The present constitutional and legal structure shows that the EC is the body responsible for actualising the constitutional right to vote, and ensuring the conduct of free and fair elections, tasks for which it has been given extraordinary powers (powers that can sway electoral outcomes) (see, specifically, Rastogi J, paragraph 25). Reading history and structure together, one reaches the conclusion that the absence of parliamentary legislation, coupled with the affirmative power vested in the Prime Minister to appoint the CEC and the ECs via the Transaction of Business Rules, creates a situation where the ECs’ independence is insufficiently guaranteed, and that, in turn, affects the constitutional right to vote and the conduct of free and fair elections. It is this last bit that triggers the jurisdiction of the Court to intervene (because the purpose of the intervention is to actualise constitutional rights), and the intervention the Court makes – in turn – must be a gap-filling one: that is, to ensure that independence is protected until Parliament fulfils the expectation of Article 324(2) and legislates (as it did in Vishaka’s Case). Thus, in sum (paragraphs 215 – 216):
“We have set down the legislative history of Article 324, which includes reference to what transpired, which, in turn, includes the views formed by the members of Sub-Committees, and Members of the Constituent Assembly. They unerringly point to one conclusion. The power of appointment of the Members of the Election Commission, which was charged with the highest duties and with nearly infinite powers, and what is more, to hold elections, not only to the Central Legislature but to all the State Legislatures, was not to be lodged exclusively with the Executive. It is, accordingly that the words ‘subject to any law to be made by Parliament’ were, undoubtedly, incorporated.
No law, however, came to be enacted by Parliament. We have elaborately referred to the noises and voices eloquently and without a discordant note being struck, which points to an overpowering symphony, which calls for the immediate need to fulfil the intention of the Founding Fathers, starting with the Goswami Committee in the year 1990, more than three decades ago, the Two Hundred and Fifty-Fifth Central Law Commission Report in 2015 and the Reports, both in the Press and other materials.”
Now, one may disagree with the specific method chosen by the Court to preserve institutional independence – and indeed, the history of the Central Bureau of Investigation after the Vineet Narain case should make us wonder whether this is a case of “doing the same thing over and over and expecting different results” – a bit like the Football Association appointing Mike Riley as the referee of a Manchester United game and somehow expecting that this time, he won’t award a random penalty. But that apart, the flow of the reasoning should now be clear. In brief:
1. Constitutional history shows that the term “subject to the provisions of any law … made by Parliament” in Article 324(2) carries with it a constitutional expectation that Parliament would legislate, and the law would guarantee the independence of the EC from executive control.
2. The present role and functions of the EC make it the body tasked with actualising the constitutional right to vote, and safeguarding democracy through the conduct of periodic elections.
3. From , we get the proposition that the existing system, where Parliament has not acted, and the executive controls the appointments process, is contrary to the intention underlying Article 324.
4. From , we get the proposition that the Court has the jurisdiction to step in and devise a mechanism to protect the rights at issue.
5. From  and , we get the proposition that the Court’s intervention must (a) remove sole executive control over the appointments process, and (b) be temporary, until Parliament acts. Recall that under Article 324, the primary duty to act is with Parliament.
6. Thus, the Court creates a temporary, gap-filling measure, which is appointment by a committee comprising of the PM, the LOP, and the CJI.
I want to flag a couple of points, by way of conclusion. The first is that this is a case that shows us – not for the first time – the weaknesses in the design of the Constitution. In hindsight, the framers’ belief that delegation to Parliament would solve the vexing issue of the independence of the EC – instead of constitutionalising it – seems particularly naive, given that the framers were also enshrining a Parliamentary system of governance, which almost inevitably throws up dominant executives firmly in control of their parties. Why would those executives give up such a valuable power? History has borne this out, and it has also placed the Court in a difficult situation: slice it any way you want, what is happening here does appear to be a rewriting of the Constitution by judiciary. In this post, I have attempted to show that the Court’s reasoning process to get there is defensible; but the brute fact remains that this appointment procedure is nowhere present in the Constitution, and is – essentially – brought into being by judicial fiat. This makes an attack on the Court by the executive – on grounds of judicial overreach – an inevitability. And for that, it is the constitutional design that is to blame, because it places the Court in a no-win situation.
Secondly, what is Parliament was to encode the present method – appointment by the Prime Minister – into law, either by Ordinance or legislation? Both possibilities are eminently feasible, politically. I believe, however, that this would be unconstitutional: one thing that this judgment does is to make it clear 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, and sole executive control over appointments will certainly fail that test. This is not to say that the Court’s solution is the only correct solution: one would hope that we do not have an NJAC redux here! Indeed, the proposed solution does not even need to have the presence of the CJI; but what it must do is to secure structural independence, and contain adequate safeguards against executive dominance. Of course, it remains to be seen if a future Court will honour the precedent in this case: a law made by Parliament will still have to be challenged and adjudicated, or it will become a fait accompli. At least for now, though, the judgment in Anoop Baranwal is a valuable first step in the direction of a structurally independent Election Commission.
This article first appeared on the author’s blog. It has been edited slightly for style. Read the original here.
Gautam Bhatia is a Delhi-based lawyer and author.