In a bold judgment that deals with issues that are matters of moment for Indian democracy, a constitution bench of the Supreme Court modified the selection process for the appointment of members of the Election Commission of India.
The court was adjudicating upon a set of writ petitions, dating back to 2015, that challenged the extant process for the appointment of members of the ECI and its structural and operational independence. The court held that the Chief Election Commissioner or CEC and other Election Commissioners or ECs must be appointed by a committee consisting of the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India.
Predictably, the judgment has garnered immense support and criticism.
One school of thought views the judgment as filling an important legislative vacuum – namely creating an independent and non-partisan process for the appointment of ECI members.
On the other hand, there are those who argue that resolution of this impasse would have been best left to the political process. They further contend that the key precedent that Justice Joseph’s judgment relies on for creating the new appointment framework – the collegium system for appointing judges to the higher judiciary – has itself been beset with concerns as to its effectiveness and transparency – a reliable and accurate bellwether for how the new framework will work for the ECI.
The court’s concerns for the need for judicial intervention were well-founded and the new framework that it created justified and proper. However, it could have adopted a different remedial option that would have arguably accounted for some of the concerns voiced by critics of the judgment.
Recall that Article 324(2) of the constitution, as the default rule, vests the power to appoint the CEC and ECs in the president of India. However, the provision enables the parliament to alter the default by enacting a law, by stating that the default rule is ‘subject to the provisions of any law to be made by parliament’.
In our opinion, the framers deliberately and consciously conceived the default arrangement to provide time to the parliament to explore a robust, independent and rule-bound mechanism for the appointment of ECI members. Given that Article 324(2) creates a default framework until such time as parliament steps in, it is difficult to agree with the court when it concludes that there is a legislative vacuum which the court had to step in to close.
Equally, there is no denying that the independence of the ECI is critical for the sustenance of Indian democracy and for the right to vote – a constitutional right – to have meaning. It is also beyond dispute that the process for appointing members of the ECI is an important element in securing such independence. The ECI is, to use the language of Oxford law professor Tarunabh Khaitan, a guarantor institution, that guarantees compliance with important constitutional norms.
Further, the enabling language that empowers the parliament to step in to make a law on the appointment of ECI members evinces a desire of the framers for a rule-bound and non-partisan framework in the long term to regulate the appointment process of ECI. To that extent, the judgment produces an outcome consistent with the vision of the framers in creating Article 324(2).
While we do not believe that there was a legislative vacuum, as argued above,, it is equally true that Article 324(2) of the constitution is not accompanied by an immediate trigger that would require parliament to act to create a framework for appointing ECI members. As the court wisely notes, political parties have a special interest in not framing such a law, due to the vital link that exists between the ECI and “the pursuit of power, its consolidation and perpetuation.”
For all these reasons, we have significant sympathy for the view adopted by the court that the extant framework for appointing members of the ECI is not appropriate as a constitutional matter, necessitating judicial intervention.
Where we disagree with the court is at the stage of the remedy that it formulated.
It held that the new appointment system created by it would operate immediately and would be “subject to any law to be made by Parliament.” The court could have instead opted for a remedy that is often used by the apex courts of South Africa and Canada – a suspended declaration of invalidity. Under this approach, the court’s judgment would have been in abeyance for a given time period, say one year. During this time, parliament would have had the opportunity to step in and cure the constitutional infirmity found by the court, namely the absence of a non-partisan and rule-bound mechanism to appoint members of the ECI. If parliament would have failed to act within this one year period, the court’s judgment would then have come into force.
This approach would have imbued the court’s judgment with greater legitimacy and set in motion a constitutional dialogue between the court and parliament. The court could have also used this latitude to lay down norms on two important issues that it left to parliamentary wisdom – norms for removal of ECs or variation in their service conditions and having a permanent secretariat and funding arrangement for the ECI. Under the framework we propose, the court could have ruled on these two aspects without having to encounter the charge of judicial activism that perhaps made it stay its hand.
In conclusion, while the judgment produces an outcome that strengthens Indian democracy, it could have done so in a way that equally strengthens the court’s institutional legitimacy.
Dr. Sanjay Jain is professor at the NLSIU Bangalore. Rahul Bajaj is a practicing lawyer in the Delhi high court.
The authors would like to thank Dr Tarunabh Khaitan and Malhar Satav for their inputs.