Lately, there has been a lot of attention on various public institutions in the country, given that there is a growing concern in certain circles about their independence and credibility. The Supreme Court’s recent judgment on the appointment of the chief election commissioner (CEC) and election commissioners (ECs) reflects such concern.
The ongoing discussion on the judgment, however, has been narrow and overly legalistic, focusing solely on the institution’s constitutional-legal framework and judicial interpretations related to the status and powers of the Election Commission of India (ECI). In fact, such an approach has also been prevalent in the academic study of the institution (refer to Kapur and Mehta 2005; McMillan 2010; Sridharan and Vaishnav 2017; Mendiratta 2017; Singh and Roy 2019).
The judgment has also drawn attention to the relevant proceedings of the Constituent Assembly on ECI to explore the ‘original intent’ behind setting up this particular institution and the concern the members of the Assembly had articulated about its independence.
Reading the constitutional text
Article 324 of the Indian constitution created the ECI, a permanent constitutional institution. Clause 1 of the Article vests ECI with the task of “superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of, all elections to parliament and to the legislature of every state and elections to the office of President and Vice President”.
Clause 2 mandates that the appointment of the CEC and ECs “shall, subject to the provisions of any law made in that behalf by parliament, be made by the President”.
In order to ensure the independence and status of the ECI and its members, Cause 5 mandates that the CEC “shall not be removed from his office except in like manner and on the like grounds as a judge of the Court and the conditions of service” of the CEC “shall not be varied to his disadvantage after his appointment”.
In its attempt to expand its authority, the ECI, which came into existence on January 25, 1950, has been helped by the “broad nature of its constitutional framework”, which gives it not only a “solid underpinning” but also allows for flexibility in being able to interpret and enforce its mandate effectively as the circumstances change and new challenges come up. The Supreme Court has played an enabling role through several of its landmark judgments on ECI.
The most recent judgment of the five-member constitution bench, headed by Justice K.M. Joseph, has come on a clutch of petitions ‘maintained’ under Article 32, filed in the public interest by Anup Baranwal in 2015 and many others at different times, whereby the Court was ‘called upon to consider the true effect of Article 324 and, in particular, Article 324(2) of the Constitution’.
The petitions argued that due to the failure of the parliament to enact legislation regarding the mode of appointment and qualifications of the CEC and ECs, successive union governments have appointed the people of their choice. Such a system, therefore, the petitions said, raised questions about the neutrality and independence of the ECI and its members.
The petitioners pleaded with the court to step in to fill the “constitutional vacuum”, resulting from such legislative inaction. Towards this end, the petitioners urged the court to provide for an independent body to appoint the CEC and ECs to ensure the neutrality of the ECI, insulating it from political interference and executive control.
The petitions also referred to what it perceived as a “lacuna” in the procedure of the removal of ECs as stipulated in Clause 5 of Article 324. Unlike the CEC who has to be impeached by a two-thirds majority of the parliament on the proven charges of “proved misbehaviour” or “incapacity” like in the case of a Supreme Court judge, the President can remove ECs simply on the recommendation of the CEC, though the recommendation is not binding on the President.
Other issues that the petitioners brought to the notice of the Court were the funding of the ECI and the status of the citizens’ right to vote.
The five-member constitution bench passed a unanimous judgment, authored by Justice K. M. Joseph, who also headed the bench, said that a committee consisting of the Prime Minister, the Leader of the Opposition or the leader of the largest party in the Lok Sabha, and the Chief Justice of India shall be recommending the names of the CEC and ECs to the President for appointments. This “will be subject to any law to be made by the parliament” in the future. The Court referred to its ‘plenary power under Article 142’ to fill up the ‘legislative gap’. Both the ‘absence of any law’ and the ‘views expressed’ in ‘various reports of the Law Commission and Election Commission’ became the basis of the invocation of the said Article.
While delivering its verdict, the apex court referred to the concerns of the Constituent Assembly’s members about the need to keep the ECI independent of the executive, unlike the election management body provided under the Government of India Act, 1935 to conduct the provincial elections in 1937 and 1946. The judgment, however, did not agree with the petitioners’ plea that the ECs be accorded the same security of tenure as the CEC has under the constitution, even as the court reiterated that there is “equality otherwise between the CEC and ECs in various matters” including the salaries and tenure. Citing both the TN Seshan case and Dhanoa case (1991), the Court considered the fact that Article 324 is inoperable without the Chief Election Commissioner which is not the case with ECs.
In the T.N. Seshan case (1995), while upholding the manner of the removal of ECs, the court had clarified that the CEC recommendation for removal must be based on “intelligible and cogent considerations, which would have relations to the efficient functioning of the Election Commission”. The constitution bench had then further noted that this specific “privilege has been conferred on the CEC” so that the ECs “are not at the mercy of political or executive bosses of the day”.
On funding issues, the judgment merely recommended to the Union government to set up a permanent secretariat that would facilitate the ECI to have its own set of officers and staff and not depend overly on the officers and staff on deputation from different departments/ministries of the Union government which is the case now.
The court also asked the government to bring legislation into effect that the expenditure of the EC is charged upon the Consolidated Fund of India. As for the status of the right to vote, the bench adjudged it as a constitutional right but refrained from making it a judicial declaration as an earlier five-judge constitution bench had held the right to vote as the statutory right in Kuldeep Nayar case (2006), which was a reiteration of another constitution bench judgment in N.P. Ponnuswami case (1952).
Issues of debate
The judgment regarding the setting up of a collegium has received widespread acclaim on the following grounds.
First, it shall fill up a constitutional requirement as envisaged in Clause 2 of Article 324, in line with the thinking of Constituent Assembly members. Second, the broad-based selection of the CEC and the ECs shall enhance the ‘moral authority’ and further improve the citizens’ perception of the neutrality and independence of the institution. Third, it would save the ECI members from coming under pressure from the party/parties in power at the Centre, which may attempt so in its “insatiable quest to continue in the saddle”.
One can, however, have several reservations regarding the judgment. First, the CJI being in the committee to recommend the appointments raises the question of the violation of the doctrine of separation of power, as the appointments fall in the domain of the executive. Second, since the CJI is going to be a member of the recommending committee, in case there is a case of impropriety that comes up against the ECI members in the court, it would cause embarrassment to the office of the CJI.
Third, the judgment by holding the existing system as flawed and also making observations during the hearing stage that raised implicitly the question mark over the manner of appointments to the ECI in a way undermines the position and authority of the incumbent ECI members which is neither fair to them nor for the ECI as an institution.
Fourth, it is debatable if the collegium system shall make the ECI immune from political pressure as was being put out by the petitioners. The appointments to the Central Bureau of Investigation (CBI) are a pertinent example.
Fifth, the judgment may incentivise the demand for the inclusion of the CJI in the selection process of other institutions like the Enforcement Directorate or Union Public Service Commission, a case of ‘judicial overreach’.
Sixth, the Court by rejecting the National Judicial Appointments Commission (NJAC) refused to involve an elected executive on the pretext of judicial independence being the ‘basic feature’, but in this case, it is going to be part of the selection process falling under the jurisdiction of the executive.
Finally, amidst all the talk of democratic backsliding in India in certain forums, it is notable that nothing is being said about the lack of fairness or integrity of the election process. The credit for this only goes to the ECI.
Ashutosh Kumar teaches in the Department of political science, Panjab University.