THE IMPLICATIONS OF THE RECENT SUPREME COURT RULING ON ECI APPOINTMENT

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This article is written by Deepanshi Tiwari of 7^th Semester of BALLB (Hons.) of Shri Ramswaroop Memorial University

Introduction

Part XV (Articles 324-329) of the Indian Constitution is dedicated to elections, which form a vital mechanism for ensuring modern representative democracy among Indian citizens since the 17th century. The significance of elections is underscored by Article 326, which guarantees universal adult franchise, commonly known as the right to vote. This right has been accorded special importance for a considerable period of time. Initially, the voting age for citizens was 21 years, but it was lowered to 18 years through the 61st Amendment Act in 1988.

The Indian state comprises three organs:

1. The Legislative branch,

2. The Executive branch, and

3. The Judiciary.

India follows a federal structure, which entails the equitable distribution of power between the central government and the state governments. In this context, the legislative branch is divided into two components:

1. The Parliament at the central level, and

2. The state legislatures at the state level.

The Parliament in India consists of two chambers: the Rajya Sabha, with a maximum occupancy of 250 members, and the Lok Sabha, with a maximum occupancy of 552 members. The party or coalition that secures 50% or more seats in either chamber during the general elections forms the government. This allows them to establish their party’s governance.

To ensure the conduct of free and fair elections in the country, the Indian Constitution established the Election Commission under Article 324. This independent body was established in 1950 and is responsible for conducting elections for the Parliament, state assemblies, as well as the offices of the President and Vice President. However, it should be noted that the Election Commission is not responsible for overseeing elections of local authorities. Those elections fall under the jurisdiction of the respective State Election Commissions. The State Election Commission and the Election Commission are separate entities, each functioning independently.

What is Article 324

The Election Commission initially functioned as a one-member body comprising solely the Chief Election Commissioner until 1989. However, in 1989, the President issued a notification under Article 324(2) of the Indian Constitution, altering the composition of the Election Commission. Consequently, it transformed into a multi-member body comprising the Chief Election Commissioner and two additional Election Commissioners. This change was subsequently reversed in 1990 when the President rescinded the earlier notification, reverting the Election Commission back to its original form as a one-member body.

Article 324 of the Constitution explicitly states that the “superintendence, direction, and control of elections” are vested in the Election Commission. However, Article 324(1) specifies that this power is limited to elections for the Lok Sabha, Rajya Sabha, State Legislative assemblies and councils, as well as the offices of the President and Vice President. The Election Commission is not involved in the elections of Panchayats and Municipalities, as those are administered by the State Election Commission in each state.

Article 324(2) discusses the composition of the Election Commission, which consists of the Chief Election Commissioner and two Election Commissioners. However, Article 324(4) allows the President of India to appoint regional commissioners in consultation with the Election Commission, if deemed necessary. The appointment of the Chief Election Commissioner and the other Election Commissioners is subject to any relevant legislation enacted by Parliament, and it is done by the President.

According to Article 324(3), if additional Election Commissioners are appointed, the Chief Election Commissioner assumes the role of the Commission’s Chairman. The President of India determines the tenure and conditions of service for the Election Commissioners and regional commissioners. Additionally, Article 324(5) specifies that the Chief Election Commissioner and the two Election Commissioners possess equal powers and receive equal salary and allowances, akin to those of a Judge of the Supreme Court.

How the issue came to the supreme court?

In January 2015, Anoop Baranwal took the initiative to file a public interest litigation challenging the constitutionality of the prevailing practice, wherein the responsibility of appointing members of the Election Commission rests with the Central government. The petitioner sought the intervention of the court through a mandamus, which would command the respondent (the government) to establish a law ensuring a fair, just, and transparent selection process for appointing members of the Election Commission. The proposed mechanism would involve the creation of a neutral and independent collegium or selection committee tasked with recommending suitable candidates for these positions.

Subsequently, in October 2018, a two-judge bench of the Supreme Court, recognizing the significance and complexity of the matter, referred the case to a larger bench for further consideration. This referral was deemed necessary as a thorough examination of Article 324 of the Constitution was required. This specific article deals with the powers and duties of the Chief Election Commissioner, making it crucial to scrutinize its implications in the context of the appointment process.

The public interest litigation in question seeks to bring about a transformation in the current method of appointing India’s highest-ranking election officials. If successful, it could have wide-ranging implications for the electoral system and governance as a whole.

Currently, the central government holds considerable discretion in the appointment of these officials due to the absence of a specific legislative process outlined in the Constitution. This lack of clarity regarding the procedure for appointing the Chief Election Commissioner and Election Commissioners creates room for debate and the potential for reform in order to establish a more structured and accountable appointment mechanism. The issues raised such as-

To what extent does the present appointment process of the Election Commission contravene the constitutional guarantee of equality in India?
Does the existing procedure for appointing the election commission undermine the right to fair and unfettered elections?

Analysis of the supreme Court

The Supreme Court has ruled that the President is responsible for appointing the Chief Election Commissioner and Election Commissioners, as stated in Article 324 of the Constitution. However, a five-judge Constitution bench, led by Justice KM Joseph, began hearing the case and after almost a month, reserved its verdict. The bench, which also included Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar, unanimously reached a conclusion and directed the formation of a committee to provide advice. This committee will consist of the Prime Minister, the Leader of the Opposition (or the leader of the largest opposition party in Parliament), and the Chief Justice of India.

Nevertheless, it is important to note that the appointment procedure, as mentioned in Article 324, is subject to any laws enacted by Parliament on this matter. This means that Parliament has the authority to pass legislation that can override the direction given by the Supreme Court. Consequently, this has resulted in a modification of the previous method of appointing the Election Commission.

The Court’s verdict was based on an examination of the constituent assembly debates to determine the original intentions of the Constitution’s framers regarding the appointment process. It also involved an interpretation of similar provisions in the Constitution, with the aim of ensuring a process that is independent from executive interference.

Conclusion

Even after the Court’s verdict, numerous questions continued to arise. Various contentions were presented by both the government and the general public. The government argued that the judiciary was exceeding its authority by outlining the appointment procedure, whereas Article 324 clearly states that the Parliament has the power to enact laws governing the appointment process. They believed that this intervention violated the principle of separation of powers and encroached upon the jurisdiction of other branches of government. On the other hand, some arguments were made in favour of the appointment procedure, stating that it enhanced the independence of the Election Commission. In my view, the judiciary plays a crucial role in bridging gaps in the law, and the verdict explicitly mentioned that if the Parliament enacts any legislation regarding the appointment of the Election Commission, this Supreme Court judgment can be disregarded. It remains uncertain whether a future Court will uphold this precedent, requiring challenges and judicial review of any laws enacted by Parliament, or whether such laws will be deemed conclusive. Nevertheless, the judgment in the case of Anoop Baranwal is a significant initial step toward establishing a structurally independent Election Commission. The legislative context of the phrase “subject to the provisions of any law made by Parliament” in Article 324(2) contains a constitutional expectation that Parliament would legislate, and the law would ensure the independence of the Election Commission from executive branch

However, Parliament failed to pass any laws. As a result, the constitutional framework that controls the appointment of the Chief Election Commissioners and Election Commissioners is lacking.

Henceforth, within this discourse, I have posited that the criticism directed towards the verdict based on the principle of separation of powers is misguided, given that norms lacking inherent enforcement necessitate protection from the current governing body. Additionally, although Rastogi J arrives at a similar conclusion, advocating for a committee composed predominantly of the PM, CJI, and LoP, his rationale appears perplexing. It remains uncertain whether this committee, entrusted with appointing the heads of CBI and ED as well, can ensure unbiased appointments. While this panel consisting of three members has not demonstrated an exemplary track record, the future functioning of the EC is yet to be observed.

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