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.
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*Independent legal researcher based in Kolkata, has been following Anoop Baranwal v. Union of India since the beginning. Contact: sumitkrganguly@gmail.com