The court's ruling in Anoop Baranwal versus Union of India emphasises that independence of the ECI has to be protected not merely after appointment but by the process of appointment itself.
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"OUR minds stand fortified that there is an imperative need for the court to step in", said the five-judge Constitution bench last week while directing the constitution of a committee consisting of the Chief Justice of India, the Prime Minister and the Leader of Opposition in the Lok Sabha for appointment of Election Commission of India (ECI) members.
The bench, headed by Justice K.M. Joseph, and composed of Justices Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar and Ajay Rastogi, ruled that the above direction will hold till the time the Parliament makes a specific law on the appointment of ECI members. Of the five, only Justice Rastogi delivered a separate judgment which largely concurred with the majority view, authored by Justice Joseph on the behalf of himself and Justices Bose, Roy and Ravikumar.
The court's ruling in Anoop Baranwal versus Union of India emphasises that the independence of the ECI has to be protected not merely after the appointment of its members but by the process of appointment itself.
The Leaflet breaks down the judgment.
Arbitrariness, nepotism and despotism are vices that are likely to arise in a polity. It is the promise of avoidance of these vices that persuades nations to embrace a democratic form of government, observes Justice Joseph.
“The ECI needs to be independent and fully insulated from "any external or internal disrupting environment".
But what does a fiercely independent, honest, competent and fair Election Commission ensure? Primarily, according to the majority judgment, the prevalence of rule of law and equality in treatment of all political stakeholders.
Rule of law, which Justice Joseph succinctly describes as the State's actions being governed by pre-announced norms, prevents a democratic government brought to power by the strength of the ballot from betraying their trust and "lapsing into caprice, nepotism and finally despotism".
"An Election Commission which does not ensure free and fair polls as per the rules of the game, guarantees the breakdown of the foundation of the rule of law," he notes.
There is a "telling and chilling effect on the fortunes of the political parties", when, in the wide spectrum of powers that the commission possesses, it exercises them unfairly or illegally, or if it refuses to exercise power, for instance, by not flagging a Model Code of Conduct (MCC) violation when it was pertinent to do so.
"Inequality in the matter of treatment of political parties who are otherwise similarly circumstanced unquestionably breaches the mandate of Article 14 [of the Constitution]," the majority judgment holds.
The judgment, in addition, holds that political parties are of great significance to the democratic process, stating that "[p]olitical parties must be viewed as organisations representing the hopes and aspirations of their constituents, who are citizens."
Therefore, in its interpretation, an Election Commission that treats political parties in an unfair or arbitrary manner, violates the mandate of Article 14, and causes its breach, making it liable to be scrutinised in court.
'People' is the central axis on which the concept of democracy revolves, Justice Rastogi says in his concurring judgment, and the decisions taken by the Election Commission need to generate the trust of the people so that the sanctity of the democratic process is maintained.
In Justice Rastogi's view, it is a betrayal of trust of the voting citizenry and the sanctity of the democratic process when the ECI fails to act (or refuses to act) in a fair, transparent and impartial manner; and its result is the creation of fear in the minds of the common citizens that the democratic process is being compromised.
“The power of appointment of ECI members was not to be lodged exclusively with the executive, and for its avoidance, specific provisions must have been enacted.
Therefore, he concludes, the ECI needs to be independent and fully insulated from "any external or internal disrupting environment".
The Supreme Court's ruling in Indira Gandhi versus Raj Narrain (1975) has been cited by the majority judgment to reiterate that democracy can only function upon the faith that elections are free and fair, and, to bring home the point that the sovereignty of the people rests upon free elections, held on a regular basis through which people may choose the representatives that represent their views.
On the importance of the division of powers between State institutions and their independence, Justice Rastogi notes, "Each institution in our Constitution has its demarcated role, which can only be fulfilled if the people who are running these institutions are responsible. The people who run these institutions need to be accountable to the people, and therefore the process of selecting them has to ensure the independence of the institution."
The gains attained by the country through decades of independence struggle cannot be given away merely because institutions still continue to operate in an opaque manner, he avers.
Though, the importance of ECI's independence is also relevant in the context of the vast powers and responsibility it holds in conducting national and state elections. "Article 324 [of the Constitution] is a reservoir of power to be used for holding free and fair elections", the majority judgment notes; it is in this context that the court finds that the executive must not enjoy the exclusive power over ECI appointments, "particularly without any objective yardstick".
Article 324 gives the ECI wide powers towards the "superintendence, direction and control" and the conduct of elections to the Parliament and to the legislature of every state, and of elections to the offices of President and Vice-President.
The concurring judgment similarly recognises that in light of its wide powers, the ECI is one of the most important institutions for preserving and promoting the democratic process, and the structures of democracy on Indian soil.
"To strengthen the democratic processes, the institution of the Election Commission needs to be independent and demonstrate transparency and accountability. This reason is enough in itself to call this Court to examine the institutional structure of the Election Commission of India," Justice Rastogi writes in his judgment.
"Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine", reads clause (5) of Article 324, the primary provision under scrutiny in this matter.
“It is important that the Election Commissioner's appointment not be overshadowed by even a mere perception that a 'yes man' will decide the fate of democracy and all that it promises.
The Parliament enacted the Election Commission (Conditions Of Service Of Election Commissioners And Transaction Of Business) Act (EC Act) in 1991, which deals with the salary, term of office, pension and other perks for Election Commissioners, but does not prescribe a selection procedure for their appointment. In the absence of statutory provisions, the responsibility of appointing Election Commissioners has rested solely with the executive since the commencement of the Constitution seven and a half decades ago, and the court expressly records this anomaly.
"It is precisely to guard against the abuse by the exclusive power being vested with the Executive that instead of a consultative process being provided, Parliament was to make a law. This clearly was the contemplation of the Founding Fathers", the court holds, while noting that it was specifically such an appointment (by the executive alone) which was the cause of unanimous concern among the Members of the Constituent Assembly and the various State-appointed committees that have made recommendations for reformation of the ECI selection process over the years.
During the course of the hearings in November last year, the Union government, pleading for a strict separation of powers, had contended that the question on whether there is a legislative vacuum that needs to be filled or not is a matter of parliamentary debate, and merely because the Parliament has been given the power to make a law in certain regard does not imply that a law has to be mandatorily passed.
The Attorney General for India argued further that the court should only choose to adjudicate on this debate if it is shown by the petitioners that there has been a complete aberration of the ECI's independence.
Meanwhile, the Solicitor General of India had contended that there is something called "independence of the executive" (a concept hitherto unheard of) which must not be interfered with.
In the court's interpretation, based on the legislative history of the provision, the words "Subject to the provisions of any law made by Parliament" point "unerringly" to one conclusion: that the power of appointment of ECI members was not to be lodged exclusively with the executive, and for its avoidance, specific provisions must have been enacted.
Justice Rastogi was in agreement with Justice Joseph's view that Article 324's expectation on the Parliament to make a law with regard to appointments is unambiguous. Since the EC Act enacted by it does not deal with the appointment process, "[t]he instant case aptly calls for the exercise of court's powers under Article 142 [of the Constitution] to lay down guidelines to govern the process of selection and removal of Chief Election Commissioner and Election Commissioners, till the Parliament steps in," he writes.
However, the reasons for the absence of such law "are not far to seek", the majority judgment observes. "As long as the party that is voted into power is concerned, there is, not unnaturally, a near insatiable quest to continue in the saddle", it notes, adding that there is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and its perpetuation, which gets aided when the ECI works in a biased manner.
Reference may be made by this author to the 2019 General Elections to the Lok Sabha, in the context of which sincere concerns were expressed by various quarters regarding the light-touch nature with which the MCC was employed against the ruling Bharatiya Janata Party. Though one of the incumbent Election Commissioners during that period, Ashok Lavasa, had expressed his dissent against not holding the Prime Minister in contempt of the MCC; he was overruled by the other two members. All disputes of opinion amongst the Election Commissioners are resolved according to the opinion of the majority, as per the EC Act. In the aftermath of the elections, Lavasa resigned from the ECI.
"A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power," observes the majority judgment.
Demonstrating that the Supreme Court has stepped in to fill legislative gaps in the past deploying its powers under Article 142 (passing an order necessary for doing complete justice), the majority judgment cites the Supreme Court's ruling in Vineet Narain versus Union of India (1997), which gave detailed directions on the process of appointment of the Chief Vigilance Commissioner and the Director of the Central Bureau of Investigation to ensure their independence.
Justice Rastogi, arguing on the same point, cites the following judgments delivered by the Supreme Court to buttress his point:
Also cited separately is the ruling in Supreme Court Advocates-on-Record Association & Ors. versus Union of India (2015), through which a Constitution bench of the court struck down the National Judicial Appointments Commission created through the 99th Constitutional Amendment Act, taking away the executive's intended powers in making judicial appointments and preventing the influence of political considerations in this regard.
“Both judgments ignore the convention followed by the Union Government of appointing only those persons as the Chief Election Commissioner who have previously been appointed as an Election Commissioner, effectively giving the executive the power to test out the pliability of an Election Commissioner before disclosing the decision on their promotion.
In addition to examining precedents, the court also looked at the manner in which elections have been conducted in the recent past.
Justice Joseph's majority judgment highlights the growing impact of 'big money' and its power to influence elections, and the influence of certain sections of media, which Justice Rastogi notes "appear to have forgotten their invaluable role and have turned unashamedly partisan".
Both judgments are in concurrence over the point that the above calls for the unavoidable and unpostponable filling up of the vacuum that exists in Article 324.
In pursuance of the necessity demonstrated by the court, it concluded that doctrine of separation of powers should not prevent the court from filling the vacuum, even as it observed that there is "no magic formula" for demarcating the limits of judicial power. What is needed, the court said, is to maintain a delicate balance.
"Ordinarily, the court cannot usurp what is purely a legislative power or function, but in the context of the Constitution, where there exist veritable gaps or a vacuum, the Court may not shy away from what essentially would be part of its judicial function," the court concluded.
"A person, who is weak kneed before the powers that be, cannot be appointed as an [Election Commissioner]", says the majority judgment on what the court considers to be essential attributes of an Election Commissioner.
A person may be competent, academically excellent, a master administrator or even honest, but what counts the most is their commitment to independence, the majority judgment holds, echoing what Justice Joseph had stated after the Union government placed the file on Election Commissioner Arun Goel's unusually quick appointment.
“The majority judgment differs from the minority judgment on the aspect of unequal security of tenure enjoyed by the Chief Election Commissioner and the two Election Commissioners.
During the course of the hearing, it was brought to the notice of the bench that a new Election Commissioner had been appointed just after the court started hearing the ECI appointments matter on November 17. The court thereafter ordered the original file of appointment of Election Commissioner A.K. Goel be placed before it.
Goel's file showed that he took voluntary retirement from his position as Secretary of the Union Ministry of Heavy Industries on November 18; on the same day the Union Law & Justice Ministry suggested a list of four names as candidates for appointment as Election Commissioner for the consideration of the Prime Minister, who approved it on the same day and forwarded it to the President. By the next day, November 19, a gazette notification had been issued appointing Goel as an Election Commissioner. The vacancy that Goel filled had been lying vacant since May 15 last year. The court also found that the requirement for giving a three month notice for acting on the request of voluntary retirement was waived off in Goel's case.
"A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections," which Justice Joseph reiterates forms the basis of the democratic process.
In Justice Joseph's view, it is important that the appointment not be overshadowed by even a mere perception that a 'yes man' will decide the fate of democracy and all that it promises.
However, the independence that the court stressed on still cannot transgress the mandate of the Constitution and the laws, and neither can independence be used as a pretext to act in an unfair manner, the court held.
One way to ensure the independent functioning of ECI members, in the bench's view, is to ensure that they are able to complete the period of tenure mandated under the EC Act. Both the majority and minority judgments concurred on this aspect.
Section 4 (term of office) of the EC Act provides that an ECI member "shall" have a term of six years from the date of assuming office, but it may be cut short if the ECI member turns 65 years of age before the end of their tenure, as per the first proviso of this section.
The above provision is being "observed in its breach" by the Union government by taking recourse to the exception laid down in the provision, through its recommendation to appoint only those persons who are either retired from public office or are on the verge of retirement and, therefore, would not be able to have six year terms.
Election Commissioner Goel, who was appointed the day following the beginning of the Constitution bench hearings in November, was less than a month away from attaining 60 years of age.
During the hearing, Justice Joseph observed, "There has been a disturbing trend since 2004 of picking people who (the Union government) knows will not be able to have six-year terms…the so-called independence that you pay lip service to is completely destroyed by having this kind of term."
The Union government had responded by stating that the whole term of a person as a member of the ECI must be taken into account, instead of only considering their term as the Chief Election Commissioner. Looking at it this way would show that most previous Chief Election Commissioners have had a tenure in the range of four to six years, it claimed.
“Neither an ordinance nor a legislation cann subvert the ratio of the judgment, which is that the executive alone cannot hold the reins of appointments to the ECI.
The court rejected the above line of reasoning, clarifying that the Constitution enshrines a term of six years separately for the Chief Election Commissioner and the Election Commissioner. Accordingly, a person may serve two consecutive terms of six years each.
Adding to its observation that Section 4 was being observed in its breach, the court held, "A proviso cannot arrogate itself to the status of the main provision. The exception cannot become the Rule. Yet, this is what the appointments have been reduced to. It undermines the independence of the Election Commission."
Justice Rastogi's minority judgment notes that an examination of the practices for appointment of the head of election-conducting bodies across the world shows the trend of including members of the opposition in the process. In addition, some jurisdictions also have Constitutional functionaries such as Speakers of the Parliament, and judges of the highest Court in the country, in a multi-member Committee. "It not only provides a system of accountability of the ruling party but also ensures a much-crucial deliberative process."
A relief sought from the bench related to the creation of an independent secretariat for the ECI on the lines of the Lok Sabha/Rajya Sabha Secretariat, and to allow the expenditure of the ECI to be charged on the Consolidated Fund of India.
"There cannot be any doubt that the [ECI] is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the Executive", the majority judgment notes, staging the argument for the ECI's financial independence.
"One of the ways in which the Executive can bring an otherwise independent body to its knees is by starving it off or cutting off the requisite financial wherewithal and resources required for its efficient and independent functioning.", the majority judgment notes.
Faced with the prospect of it not being supplied enough funds and facilities, "a vulnerable Commission may cave in to the pressure from the Executive and, thus, it would result in an insidious but veritable conquest of an otherwise defiant and independent Commission."
The majority judgment, therefore, was of the view that to allow the executive to hold the financial strings of the ECI would detract it from its efficient functioning, and appealed to the Union government that there is an "urgent need" to provide for a permanent Secretariat and also to provide that the expenditure be charged on the Consolidated Fund of India.
However, one aspect which both judgments ignore is that of the convention followed by the Union government of appointing only those persons as the Chief Election Commissioner who have previously been appointed as an Election Commissioner, effectively giving the executive the power to test out the pliability of an Election Commissioner before disclosing the decision on their promotion.
One major aspect on which the majority judgment differs from the minority judgment is on the aspect of unequal security of tenure enjoyed by the Chief Election Commissioner and the two Election Commissioners.
In regard to security of tenure, while the Chief Election Commissioner enjoys the same security against removal as a judge of the Supreme Court (that is, they can only be removed through a resolution passed by a majority of Lok Sabha and Rajya Sabha members) and the conditions of service of the Chief Election Commissioner cannot be varied to their disadvantage after their appointment, the two Election Commissioners do not enjoy such security.
An Election Commissioner can be removed from office on the recommendation of the Chief Election Commissioner to the President, as laid down under the second proviso to Article 324(5). However, the recommendation for removal "must be based on intelligible and cogent considerations which would have relation to the efficient functioning of the Election Commission", the Supreme Court held in T.N. Seshan versus Union of India (1995). This unequal security of tenure was first affirmed by the Supreme Court in S.S. Dhanoa versus Union of India (1991).
In the majority judgment, it is noted that an attempt was made to persuade the court to hold that, being in the nature of a further proviso, as the words of the second proviso begin as 'provided further', it is only a further protection to the Election Commissioner or a Regional Commissioner.
The argument of some of the petitioners was that not only does an Election Commissioner enjoy security against removal that the CEC enjoys, but they enjoy a further protection that they may only be removed by a recommendation by the CEC. The majority judgment rejected this argument, holding that the proviso is intended to be read as a standalone provision.
Despite recognising the anomaly, the majority bench was of the view that it is for Parliament acting in the constituent capacity to consider whether it would be advisable to extend the protection against removal to the Election Commissioners as well. "This goes also as regards variation of service conditions after appointment."
Justice Rastogi, however, took note of various reports that have recommended that the protection against removal available to the Chief Election Commissioner should be made available to the other Election Commissioners to ensure the independence of the ECI.
In his judgment, he cites a note titled 'Proposed Electoral Reforms' (2004) by the ECI, which was reiterated in the 'Background Paper on Electoral Reform' (2010) prepared by the Union Ministry of Law and Justice, in co-sponsorship of the ECI.
The above documents note, "The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is provided to the Chief Election Commissioner. The Election Commission recommends that constitutional protection be extended to all members of the Election Commission."
Justice Rastogi notes further that even as the EC Act (or later amendments to it) equalised the other conditions of service — such as those on salary, tenure and perks — equal protection against removal was not granted.
"It is the need of the hour and advisable, in my view, 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," Justice Rastogi concludes.
The procedure stipulated by the Supreme Court in Anoop Baranwal will not get a chance to be tested till at least February 2024, when Election Commissioner Anup Chandra Pandey demits office on attaining the age of 65 years. However, this would still be before the 2024 Lok Sabha elections.
It would be legally permissible for the President to promulgate an Ordinance under Article 123, on advice of the Prime Minister or otherwise, to nullify this judgment; or for the Union government to introduce a legislation in the Parliament laying down an altered procedure giving the executive a greater leeway than it has received within the procedure established by the Supreme Court.
However, in either case, the ordinance or the legislation cannot subvert the ratio of the judgment, which is that the executive alone cannot hold the reins of appointments to the ECI.