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New Collegium for Elections

The Judiciary scripts Legislative order to Executive

Whether it is possible to ensure the independence of ECI? The Supreme Court made a very sincere effort towards this.  The SC bench on 2rd March 2023, explained: “Article 324(5) of the Constitution is intended to ensure the independence of the Election Commission free from all external political interference and, thus, expressly provides that the removal of the Chief Election Commission from office shall be in like manner as on the grounds as of a Judge of the Supreme Court. Nevertheless, a similar procedure has not been provided for other Election Commissioners under second proviso to Article 324(5) of the Constitution. The other conditions of the service of Chief Election Commissioner/other Election Commissioners have been protected by the Legislature by the Act 1991”.

The incomplete ‘Article 324’

Article 324 is incomplete. This “lacuna” in law was allowed to remain and that making of law under Article 324 of the Constitution had an unavoidable necessity. There should be ‘a close look and interpretation of the provision of Article 324 of the Constitution of India’, which states superintendence, direction and control of elections to be vested in the Election Commission, may be required, said the Supreme Court Bench on 2nd March 2023.

No law on point: Another lacuna

While arguing Advocate Prashant Bhushan for the petitioner pointed out that there is no law to regulate the appointment of Election Commissioners. Bhushan contended that financial independence is not enough to ensure overall independence of the institution and hence pointed out that the Law Commission had recommended to this kind of selection committee, comprising the Prime Minister, Leader of Opposition and the Chief Justice of India. He suggested that since the Prime Minister and the Leader of Opposition are connected to political parties, the Court can consider constituting a neutral body. One of the viable options, according to Mr. Bhushan is the Supreme Court Collegium. Alternatively, he suggested that a five-member committee can be constituted for appointment of ECI members. Mr Bhushan submitted that the appointing body ought to practice transparency.

The Association for Democratic Reforms (ADR)was (in Writ Petition (Civil) No. 569 of 2021), asking for implementationof (a) an independent system for appointment of members of the Election Commission on the lines of recommendation of Law Commission in its 255th report of March 2015; (b) Second Administrative Reform Commission in its fourth Report of January 2007; (c) by the Dr. Dinesh Goswami Committee in its Report of May 1990; and (d) by the Justice Tarkunde Committee in its Report of 1975.The ADR sought wanted to issue direction declaring the practice of appointment of Chief Election Commissioner and Election Commissioner solely by the executive as being violative of Articles 324(2) and 14 of the Constitution of India. 

The 20th Law Commission headed by Justice AP Shah (Retired) in its 255th report on election reforms submitted in 2015 had recommended a three-member collegium to appoint CEC and ECs.

Besides, the SC was prayed through Ashwani Kumar Upadhyay applied (in Writ Petition (Civil) No. 1043 of 2017), for direct the Central Government to take appropriate steps to provide same and similar protection to both the Election Commissioners so that they shall not be removed from their office except in like manner and on the like grounds as the Chief Election Commissioner. Secondly, sought to direct the Central Government to take appropriate steps to provide independent secretariat to the Election Commission of India and declare its expenditure as charged on the consolidated. fund of India on the lines of the Lok Sabha / Rajya Sabha secretariat. Thirdly was asked for direction the Central Government to take appropriate steps to confer rule making authority on the Election Commission of India on the lines of the rule making authority vested in the Supreme Court of India to empower it to make election related rules and code of conduct. Finally asked for strengthen ECI. The bench of the Supreme Court in Anoop Baranwal v. Union of India, WP(C) No. 104/2015 decided in 2rd March 2023, directed that “until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect, “we declare that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India. Another significant direction is that it is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India.

Neutrality is the need

The Bench further said: “… keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold free and fair election which is a sine qua non for upholding the democracy as enshrined in our Constitution, it becomes imperative to shield the appointment of Election Commissioners and to be insulated from the executive interference. It is the need of the hour and advisable”.  Its addition, the Bench directed “to extend the protection available to the Chief Election Commissioner under the first proviso to Article 324(5) to other Election Commissioners as well until any law is being framed by the Parliament”.Before understanding, the original power given through Article 324(2), this part of Indian Constitution should be study: The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.” Entire dynamics of this appointment power will depend upon interpretation of ‘executive’ and implementation of the order.

Vacuum:Government not appointed EC for 6 years?

Senior Advocate, Mr. Gopal Sankaranarayanan for petitioner explained that there is a vacuum under Article 324(2) of the Constitution as there is nothing to suggest the procedure to make appointments to the ECI. In this regard, he proposed a three-member committee consisting of the CJI, Prime Minister and the Leader of Opposition. He further submitted that till date, the Central Government has not appointed anyone as the Election Commission for the full tenure of 6 years and the same keeps the EC on a leash and affects the independence of the institution. Mr. Bhushan, pointed out that the present Election Commissioner was a sitting Secretary in the Government and was given a voluntary retirement from service and appointed as EC within two days, the Bench had sought files related to the recent appointment of Arun Goel, former bureaucrat, as the Election Commissioner. Justice Joseph pointed out that even among the 4 names that were shortlisted, the Government selected names of those who were to retire before the 6-year tenure. He noted that the executive is required to pick names of those who could serve the full tenure, otherwise it would be a violation of Section 6 of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991.

Party in power used to select CEC

This judgement of the SC will now be compelled to ‘consult’ from the both from Legislative and Judiciary also.   It is not clear whether the Prime Minister should head a body to appoint judges. The Parliament may discuss the Bill, if prepared by the Executive, may have to decide the contents of such Bill. Should the Collegium system be like National Judicial Appointments Commission Act? It all depends on the PM and his Ministers, proposed Bill, and the Parliament finally. Three Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumarrecommended reform in the process of appointment of members of the Election Commission of India, saying: “Any process that seeks to improve the election process before this Court must be considered“.

The PM alone will select

Before this exercise,  only Executive, i.e., the Government would simply select or appoint as Election Commission members without consulting any agencies. Thus, in effect, practically the PM will appoint EC.  The senior Election Commission would be elevated as Chief Election Commission, automatically, like generally the senior SC judge is elevated as Chief Justice India, not by ‘election’. But bench of the Supreme Court says that CJI will be one of the members  selecting (not elected) the Election Commission or their Chief Election Commission.  The political leaders can use that power to blame it as overriding the Executive wing. Under the Constitution of India, the Supreme Court has assumed power to issue directions in respect of the area which should fall in the area of the Executive. They say it is beyond the power conferred on Judiciary by the Constitution.

Three Estates together

The Judge of the Supreme Court in Anoop Baranwal v. Union of India, WP(C) No. 104/2015 decided in 2rd March 2023, result in fusion by the Execution (PM) and Opposition (part of Legislation, Lok Sabha) make possible with Judiciary (CJI). This is not easy. First, the PM and his cabinet should prepare a viable Bill with correct, acceptable draft and the MPs should take up discussion in positive spirit. Is it possible? Whether Election Commission should remain aloof (not friendly or willing to take part in things) from all forms of subjugation by the executive?

All forms of subjugation by the executive?

There is no doubt that the Election Commission is duty bound to act in a fair and legal manner and to abide by the provisions of the Constitution and the directions of the Court.

Democracy is inexplicably intertwined with power to the people…Democracy facilitates the peaceful revolution in the hands of a common man if held in a free and fair manner.” Election Commission should remain “aloof” from all forms of subjugation by the executive. “One of the ways it can interfere is cutting of financial support. A vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning.

Are you rewriting the Constitution? – Tushar Mehta

The Solicitor General of India, Tushar Mehta called this as rewriting of the Constitution. And hence he opposed it. Referring to the doctrine of separation of power, Solicitor General Tushar Mehta said that the power to appoint has been conferred upon the executive and the inclusion of the CJI in the appointment process would mean that the Constitution has to be rewritten. Strictly saying, it is in principle when Tushar argued that the same would be in the teeth of the concept of democracy.

‘The Montesquian’ raised by AG, R. Venkatramani 

The Attorney General for India, R. Venkatramani strongly argued on the Montesquian principle of Separation of Powers which is also a part of the Indian Constitutional Scheme. Venkatramani spoke of the powers of the Constitutional Courts in India and across the world and their inherent limitations based on the Montesquian principles.  He argued that an original provision of the Constitution cannot be struck down by a Court, it can only enhance the scope of the provision. It was pointed out that there are several provisions in the Constitution which empowers the Parliament to enact statute, however the court cannot decide whether to enact a law on behalf of the Parliament.

The Additional Solicitor General, Balbir Singh raised some more legal points. He has argued that the case before the Bench is different from the Vineet Narain and Vishakha cases and there is no trigger point and a vacuum to be filled up by the guidelines of the Apex Court. The Additional Solicitor General submitted that in the present case no evidence of partiality or unconstitutionality has been adduced.

Wait for first vacancy

However, the effect of this order will be understood or realised only when first vacancy raises in EC on 14 February 2024 when Anup Chandra Pandey demits office on retirement on completing 65years. Perhaps by then (2024) Lok Sabha elections will be scheduled by Election Commission. The Justice KM Joseph unanimously agreed to constitute a “collegium” comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition to select Election Commissioners, which felt need to ensure that the persons appointed are “above politics”. Is it possible to create select the ECs ‘above politics”?  Whether this practice suggested will be enforced until a law in this regard is made by the Parliament?  The bench had questioned the Union Government for clearing the appointment of Arun Goel as one of the Election Commissioners at a “lightning speed”.  That means, the Constitutional Amendment should be finalised and completed within February 14, 2024. 

Media abdicated the duty

The bench also said: “A large section of the media has abdicated its role and become partisan“.  The SC said that the democracy can succeed only if all stakeholders work on it to maintain the purity of the election process, so as to reflect the will of people. However, it expressed regret at the “unrelenting abuse” of the electoral process over a period of time. It also commented on the impartiality of the media in the present times. True, that they rightly told that several political parties came into power, however, none of them framed a law/ process for appointment of Election Commission.  It can be explained that the SC verdict is temporary in nature and will hold good till Parliament makes a law on this issue. 

Where is transparency?

Otherwise, without SC’s order, where is the transparency is the question? Gopal Sankaranarayanan insisted that a mechanism should be evolved to appoint Election Commissioner and Chief Election Commissioner through a transparent process which is devoid of arbitrariness.

Because of this, people are finding serious allegations that ECI is biased. Advocate Kaleeswaram Raj while arguing for petition, said in one of the pleas submitted that there is a chronic case in India that the ECI has been favouring the ruling party.

The bench rightly said; “The means to gain power in a democracy must remain pure and abide by the Constitution and the laws. EC cannot claim to be independent then act in an unfair manner. A person in state of obligation to the state cannot have an independent frame of mind. An independent person will not be servile to those in power.

The SC bench said ‘that power often becomes goal of political parties to an end. However, the conduct of the government has to be fair and, in a democracy, the end cannot justify the means. Thus, it said that EC has to be independent’.

Dr. Madabhushi Sridhar Acharyulu, LL.D.

Former Central Information Commissioner,

Professor of Constitution of India and

Dean, School of Law, Mahindra University, Hyderabad.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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