ANOOP BARANWAL V. UNION OF INDIA

ABSTRACT

“An Election Commission which does not ensure free and fair poll as per the rules of the game, guarantees the breakdown of the foundation of the rule of law.”

India’s Chief Electoral Commission (CEC) and appointment procedures for Electoral Commissions (ECs) have long been called for reform. Finally, the Constitutional Court of five judges unanimously decided that the appointment of the CEC and EC should be based on the advice of the Commission/University.

INTRODUCTION

In 2015, Anoop Baranwal filed a public interest lawsuit challenging the constitutional validity of the Centre’s practice of appointing members of the Electoral Commission.

In October 2018, his two-judge tribunal in the SC referred the case to a larger court due to the need for closer scrutiny of Article 324[1] of the Constitution, which deals with the powers of the electoral commissioner.

Last September, his five-judge Constitutional Court, headed by Justice KM Joseph, began a hearing, with the verdict reserved after about a month.

KEYWORDS- Chief Election Commission, CEC, Constitution, Supreme Court, Elections, Parliament.

FACTS OF THE CASE

• Elections are the foundation of democracy, and the credibility of committees is critical to democratic legitimacy.
• Initially, the Commission had only one Chief Electoral Commissioner. In addition to the main returning officer, there are now two returning officers. In 1989, he also had two commissioners appointed for the first time. However, their tenure was extremely limited, and they only lasted until January 1, 1990.
• Then, on October 1, 1993, two more Electoral Commissioners were appointed. Since then, the idea of a committee with multiple members and the power to make decisions by majority has existed.
• Both the Chief Electoral Commissioner and Electoral Commissioner are appointed by the President. The term of office is six years or until the age of 65, whichever comes first.
• They hold the same position as judges of the Supreme Court of India and receive the same benefits and salaries. Parliament must impeach the Electoral Commissioner from office.

UNRESOLVED ISSUES OF THIS CASE

• Such as granting the EC the same protections that the Constitution provides the CEC. Protection after deportation was essential for the independence of the EC, and the protection given to the CEC was for organizations, not individuals.
• Issues such as the criminalization of politics, the role of money power, and the dubious role of the media, have received little attention from the judiciary.

ARGUMENTS BY THE SUPREME COURT

In its decision, the court elaborated on its intention to “maintain a delicate balance” in the separation of powers. Courts cannot take away pure legislative power or function, but if there are real loopholes or empty legislative fields, courts must not shy away from what is part of their judicial functions.

The ruling cites past instances of courts intervening to close loopholes in the law, such as restraining sexual harassment in the workplace and Vishaka’s guidelines[2] for interpreting the judicial appointment process.

ISSUES RAISED BY THE SUPREME COURT

Under section 4[3] of the Chief Electoral Commissioners and Other Electoral Commissioners (Conditions of Service) Act 1991, Chief Electoral Commissioners may serve six-year terms, but must retire upon reaching the age of 65 will not work.

SC Bench investigated that during the proceedings, the government could have considered an officer expiring their six-year term to carry out prescribed duties.

However, none of the election commissioners managed to complete their six-year term. The Supreme Court found their appointment of an Electoral Commissioner for a term of less than six years to be a clear violation of the law under the provisions of the 1991 Act.

JUDGEMENT OF THE CASE

In Anoop Baranwal v. Union of India, a bench of five judges of the Supreme Court unanimously ruled that the constitutional appointments of the Chief Electoral Commissioner and Election Commissioners must be made by the President of India. Implementation, based on the opinion of a three-member committee, consisting of the Prime Minister, the leader of the opposition in the Lok Sabha, i.e., the lower house of Parliament (or the leader of the largest party in the opposition) in the lower house, in the absence of an opposition leader) and the Chief Justice of India (CJI).

CONCLUSION

Section 324(2)[4] gives parliament the task of drafting legislation determining the nomination process, and the SCI’s direction to this end is temporary in nature until the legislative is void.

However, the ruling will set a precedent, as legislation passed under Section 324(2) will be scrutinized to adequately protect the independence of election commissions from the executive branch.

In terms of the effectiveness of this appointment system, the performance of the three-member panel has not been impressive, and it remains to be seen whether the situation at ECI will remain the same, improve or worsen.

Written by – Kaynaat Rana intern under legal vidhiya

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[1] Superintendence, direction, and control of elections to be vested in an election commission

[2] Set of guidelines that were intended to protect women at workplace

[3] Term of office

[4] Superintendence, direction, and control of elections to be vested in an election commission