In a unanimous ruling, a five-judge bench of the Supreme Court, stated that a high power committee consisting of the Prime Minister, the Leader of the Opposition (LoP) or the leader of the single largest party in opposition in case there is no LoP, and the Chief Justice of India will be set up to pick the Chief Election Commissioner (CEC) and the Election Commissioners (EC).
Why the debate?
Anoop Baranwal filed a public interest litigation in 2015, challenging the constitutional validity of the Chief Election Commissioner and the Election Commissioners being appointed by the Centre alone. In 2018, a two-judge bench felt that this case required a closer examination of Article 324 and referred it to a larger bench. Article 324 of the Constitution deals with the mandate of the Chief Election Commissioner. In September 2022, a five-judge constitutional bench headed by Justice KM Joseph started proceeding in the case. The bench was comprised of Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar.
What is the challenge?
Article 324(2) of the Indian Constitution states that the Election Commission will be composed of the Chief Election Commissioner and any other Election Commissioners that the President may appoint from time to time. The appointment of the Chief Election Commissioner and other Election Commissioners is subject to any law made by Parliament. However, in the absence of such a law, the president has the power to make these appointments.
The court noted that 75 years have passed since Independence, yet successive political dispensations that have come to power have failed to make a law guiding the appointment to the Election Commission, so the court has to step in to fill this “political vacuum”.
This action of the Supreme Court also raises questions of separation of powers and judicial overreach. Two other issues that also came up during this case were the removal of Election Commissioners and whether it should be the same as the Chief Election Commissioners, and the funding of the Election Commission.
What did the court decide?
Justice Joseph authored the landmark judgment, which states that the Chief Election Commissioner and the Election Commissioners will be appointed by the President on the recommendation tendered by a committee consisting of the Prime Minister, the Chief Justice of India, the Leader of the Opposition of the Lok Sabha, and in case there is no Leader of the Opposition, the leader of the largest opposition party in the Lok Sabha.
The court said that the “independence, neutrality and honesty” of the election commission can only be realised after an end to the government monopoly and its “exclusive control” over appointments to the poll body. Justice K.M. Joseph, while writing for the bench, stressed the importance of having commissioners who can distinguish between right and wrong and can stand up to those in power. Justice Joseph argued that the ECI needs “honest, independent” commissioners who can persevere on the righteous path.
Justice Ajay Rastogi, in his concurring opinion, suggested that the procedural safeguards in place for the removal of a Chief Election Commissioner (CEC) should be extended to Election Commissioners as well. Currently, a CEC, like a Supreme Court judge, can only be removed from office through a parliamentary process. However, there is no such protection for the tenure of the election commissioners. Justice Rastogi recommended that this should change and that election commissioners should have similar protections in place to safeguard their independence and neutrality. On the issue of funding, the court left the issue to the government while appealing that there was an urgent need to set up a permanent secretariat and to provide that the expenditure be charged to the Consolidated Fund of India.
The Supreme Court also added that this judgement will be subject to any law made by the Parliament in this regard.
What is the government’s stand?
The government argued that the president has the constitutional power to make appointments in the absence of a law governing the process. The government requested that the court exercise judicial restraint.
In response, the Supreme Court stated that it aims to maintain a delicate balance on the separation of powers. The Supreme Court acknowledged that ordinarily it cannot usurp what is purely a legislative power or function. However, the Constitution provides citizens with fundamental rights and outlines constitutional goals to be achieved. The Supreme Court argued that if there exist veritable gaps or a vacuum, it may be necessary for the Court to fill this gap as part of its judicial function.
The ruling cites past instances where the Supreme Court has stepped in to fill gaps in the law, including the Vishaka guidelines to curb sexual harassment at the workplace and the interpretation of the process for the appointment of judges.