Skip to main content

Will SC verdict fill in legislative vacuum, restore Election Commission independence?

By Sumit Kumar Ganguly* 
On 2nd March, 2023, the Constitution Bench of the Supreme Court delivered its judgment in the matter of Anoop Baranwal v. Union of India [Writ Petition (Civil) No. 104 of 2015]. The court ordered that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be appointed by the President on the advice of a Committee consisting of the Prime Minister (PM), the Leader of Opposition (LoP) or the leader of the largest opposition party in Lok Sabha and the Chief Justice of India (CJI). 
The petitioner had challenged the current practice of appointing the Election Commission of India (ECI) solely on the recommendation of political-executive at the Centre. Two similar petitions, one by BJP leader Ashwini Upadhyay and another by Association for Democratic Reforms were clubbed together. In 2018, the matter was referred to the Constitution Bench by then Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul.
It must be remembered that an independent and impartial ECI is a prerequisite for a free and fair election. The provision of the Commission has been made under Article 324 of the Constitution. Under Clause (2), the CEC and other ECs are appointed by the President. As per the convention, civil servants are appointed to the post of CEC and ECs. 
The Government of India (Transaction of Business Rules), 1961 framed under Article 77(3) deals with the matter. Rule 8 read with the Third Schedule of the Rules (at Sl. No. 22) provides that the case of appointment, resignation and removal of the CEC and ECs be submitted to the PM and the President. Hence, it is the PM who selects the nominees and the President only approves.
Parliament has not enacted any specific law to provide for the appointment of the ECI under Article 324(2) even after 73 years of the commencement of the Constitution. Thereby, the power to appoint the CEC and ECs has been retained by the executive. Comparing this process of appointment with other statutory institutions, whose role must be impartial and independent, this seems to be arbitrary thereby violating Article 14. 
The Director of Central Bureau of Investigation (CBI), Chief Information Commissioner and Information Commissioners of the Central Information Commission (CIC), Central Vigilance Commissioner and Vigilance Commissioners of the Central Vigilance Commission (CVC), Chairperson and Members of the National Human Rights Commission (NHRC), Chairperson and Members of the Lokpal are appointed on the recommendation of a collegium.
The present Article 324 originally appeared as Article 289 of the Draft Constitution. On 15th June, 1948, Prof. Shibban Lal Saksena proposed amendments to it saying that the Election Commission should be appointed by the President subject to confirmation by two-third majority in a joint session of both the Houses of Parliament. Pandit Hriday Nath Kunzru said that the CEC would be appointed on the advice of the PM and the President cannot be expected to exercise his discretion. Dr. B.R. Ambedkar in his reply left the issue of appointments of the CEC and ECs to the wisdom of the Parliament.
Several Committees and Commissions have time and again dealt with the issue of appointment of the ECI with a serious view to ensure the neutrality and independence of the constitutional body. All the Committees/Commissions stated below had recommended a selection committee to appoint the CEC and other ECs.
There have been numerous controversies concerning the CEC and ECs since the past three and half decades. It has been alleged that the ECI generally discharges its functions as per the Government which appoints it. Some of the incidents are mentioned below.
  1. TN Seshan, for the first time, made the institution of the ECI visible to the general public. During his tenure as the CEC, he used his powers excessively, appearing to be more powerful than the Head of the Government. He countermanded and postponed several elections during his tenure as the CEC. He ensured strict adherence to the Model Code of Conduct (MCC) to be followed by the political parties and candidates. The Central Government had promulgated the Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Ordinance, 1993 to rein in Seshan. The actions of the Centre were upheld by the Supreme Court when challenged by Seshan. In spite of that, Seshan had serious run-ins with the two other ECs creating confusion.
    TN Seshan
  2. In July 2002, the Gujarat Legislative Assembly was dissolved prematurely following communal riots on the recommendation of Narendra Modi, then Chief Minister (CM). The ECI headed by CEC J.M. Lyngdoh ruled out early elections. Following this, Modi launched a personal attack on Lyngdoh for which he was censured by then PM Atal Behari Vajpayee. The Assembly dissolution resulted in a constitutional crisis since there cannot be a gap of more than six months between two sessions of the House. The Central Government referred the matter to the Supreme Court under Article 143. The court upheld the ECI’s order to postpone the polls saying that the provisions of Article 174 are mandatory for ‘live Assemblies’ but not ‘dissolved Assemblies’.
  3. The then CEC N Gopalaswami in February 2009 recommended EC Navin Chawla’s removal. The CEC’s report stated that he communicated all the minutes of their internal meetings to the Congress leadership. However, the then President Smt. Pratibha Patil rejected the report, thereby clearing the decks for Chawla to become the next CEC. 3 years earlier, the BJP-led NDA presented a memorandum signed by 205 MPs to the then President Dr. A.P.J. Abdul Kalam seeking Chawla’s removal.
  4. In 2015, Achal Kumar Joti was appointed to the ECI. Joti had earlier served as the Chief Secretary of Gujarat under then CM Narendra Modi. In January 2018, the ECI recommended disqualification of 20 AAP MLAs of Delhi Assembly for holding ‘office of profit’ as parliamentary secretaries. The Commission’s recommendation raised eyebrows as it happened just days ahead of CEC Joti’s retirement. Though the President approved the disqualifications, the Delhi High Court set it aside.
  5. EC Ashok Lavasa made headlines in May 2019 when he dissented on five occasions giving clean chit to PM Narendra Modi and then BJP chief Amit Shah for the violation of MCC. Not only that, the minority opinion of Lavasa was not recorded in the orders of ECI. In the following months, family members of Lavasa came under the scanner of the Income Tax Department. In these circumstances, Lavasa resigned from office to join the Asian Development Bank as its Vice-President.
The LCI’s 255th Report referred to comparative practices in South Africa, Ghana and Canada where the appointment of the electoral officers is a consultative process. During the hearing of the case, Justice K.M. Joseph mentioned about the selection of the poll panels in Sri Lanka, Nepal, Bangladesh, Pakistan, UK and USA.
The Constitution (Seventieth Amendment) Bill, 1990 was introduced in the Rajya Sabha on 30th May, 1990 by the then National Front Government. The Bill sought to provide for the appointment of the CEC and other ECs by the President after consultation with the Chairman of Rajya Sabha (i.e. the Vice-President), the Speaker of Lok Sabha and the LoP (or the leader of the largest opposition party) in Lok Sabha. It additionally provided for consultation with the CEC for the appointment of other ECs. Unfortunately, the then Congress Government decided to withdraw the bill in 1994.
In 2012, former Deputy PM LK Advani wrote to then PM Dr Manmohan Singh, demanding that the ECI must be appointed by a broad-based collegium. CPI(M) MP Dr. John Brittas introduced a Private Member’s Bill on 9th December, 2022 in the Rajya Sabha to amend Article 324(2). It stated that the ECI consisting of the CEC and other ECs be made by the President on recommendations of a Committee consisting of CJI, Lok Sabha Speaker and leader of the largest Opposition Party in Lok Sabha.
The Constitution Bench consisting of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar heard the matter for four days. Prashant Bhushan, appearing for the petitioner, cited the landmark Vishakha judgment in which the apex court laid down guidelines to prevent sexual harassment of women at workplace in the absence of a suitable legislation. 
It was also pointed out that in Vineet Narain’s case, the court directed that the selection of Central Vigilance Commissioner should be made by a committee comprising the PM, Home Minister and LoP. The petitioners also placed reliance on Prakash Singh v. Union of India, where the Supreme Court issued guidelines for insulating the police from political interference based on the recommendations of various committees/commissions.
Attorney General for India R. Venkataramani, representing the Union, replied saying there was no ‘trigger point’ for the court to interfere with the existing procedure of appointing the CEC and other ECs. Solicitor General Tushar Mehta submitted that the bench’s suggestion to include the CJI in the consultative process would violate the doctrine of ‘separation of powers.’ 
The final hearing which was live-streamed saw brilliant arguments from both sides. The Supreme Court has invoked Article 142 to do ‘complete justice’ for the object of filling the legislative vacuum. The judiciary has taken the lead to restore the independence of the ECI for greater acceptance across political parties and the citizens at large. It now remains to be seen as to how the ruling Government implements the verdict.
*Independent legal researcher based in Kolkata, has been following Anoop Baranwal v. Union of India since the beginning. Contact:



Importance of Bangladesh for India amidst 'growing might' of China in South Asia

By Samara Ashrat*  The basic key factor behind the geopolitical importance of Bangladesh is its geographical location. The country shares land borders with Myanmar and India. Due to its geographical position, Bangladesh is a natural link between South Asia and Southeast Asia.  The country is also a vital geopolitical ally to India, in that it has the potential to facilitate greater integration between Northeast India and Mainland India. Not only that, due to its open access to the Bay of Bengal, Bangladesh has become significant to both China and the US.

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Regional political dynamics 'leading to' institutional violence in SAARC University

By Sandeep Pandey*  South Asian University is a university set up in Delhi by member countries of South Asian Association for Regional Cooperation – India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan, Afghanistan and Maldives – which is open to students from all these countries. However, as SAARC is receiving little attention these days because of regional political dynamics, it appears as if SAU has lost significance too. Because of the hiatus in peace process between India and Pakistan, the Board of Governors of this University is dysfunctional.

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

'BBC film shows only tip of iceberg': Sanjiv Bhatt's daughter speaks at top US press club

By Our Representative   The United States' premier journalists' organisation, the National Press Club (NPC), has come down heavily on Prime Minister Narendra Modi for recent "attacks on journalists in India." Speaking at the screening of an episode of the BBC documentary “India: The Modi Question,” banned in India, in the club premises, NPC President Eileen O’Reilly said, “Since Modi came to power we have watched with frustration and disappointment as his regime has suppressed the rights of its citizens to a free and independent news media."

A Hindu alternative to Valentine's Day? 'Shiv-Parvati was first love marriage in Universe'

By Rajiv Shah*   The other day, I was searching on Google a quote on Maha Shivratri which I wanted to send to someone, a confirmed Shiv Bhakt, quite close to me -- with an underlying message to act positively instead of being negative. On top of the search, I chanced upon an article in, imagine!, a Nashik Corporation site which offered me something very unusual. 

Natural farming: Hamirpur leads the way to 'huge improvement' in nutrition, livelihood

By Bharat Dogra*  Santosh is a dedicated farmer who along with his wife Chunni Devi worked very hard in recent months to convert a small patch of unproductive land into a lush green, multi-layer vegetable garden. This has ensured year-round supply of organically grown vegetables to his family as well as fetched several thousand rupees in cash sales.

Over-stressed? As Naveen Patnaik turns frail, Odisha 'moves closer' to leadership crisis

By Sudhansu R Das  Not a single leader in Odisha is visible in the horizon who can replace Chief Minister Naveen Patnaik. He has ruled Odisha for nearly two and half decades. His father, Biju Patnaik, had built Odisha; he was a daring pilot who saved the life of Indonesia’s Prime Minister Sjahrir and President Sukarno when the Dutch army blocked their exit.

Anti-Valentine's Day push: Sectarian move to 'restrict, constrict' India's cultural milieu

By Ram Puniyani*  Indian culture is diverse and plural. It has been enriching itself by accepting the diversity irrespective of religion or geographical boundaries. This gets reflected in all aspects of our life, be it food habits, clothes, art, architecture, social occasions, customs and religious traditions. This is the natural grain of any open and thriving society. With the rise of sectarianism the effort is to restrict and constrict our culture in particular. 

Hillary Clinton, Al Gore, Ban Ki-moon, others ask Bangladesh PM to 'protect' Yunus

Counterview Desk  A campaign has been launched to support Bangladesh-based economist, micro-finance guru and Nobel laureate Muhammad Yunus, seeking signatures from citizens across the globe in order to “protect” his work, life and safety.