Recently, in the case of ‘Anoop Baranwal v. Union of India (2023)’, the Supreme court of India, pronounced an historic decision when it changed the procedure of the appointment of Election Commissioner of India and held that ECI shall be appointed by a committee consisting of Prime minister of India, Leader of Opposition, and Chief Justice of India.
Four writ Petitions were filed under Article 32 of the Constitution, and the court was called upon to consider the true effect of Article 324 and in particular, Article 324(2) of the constitution, which provide for the appointment of Election Commissioners. The said sub-section is as follows,
“324(2)- 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.”
The First Petition
The first petition was filed in 2015, on which the supreme court in 2018 noticed that the petition raises such issues which has not been debated and answered by supreme court earlier, therefore, considering the provision under article 145 (3), the court referred the question arising in the petition, to a constitution bench for an authoritative pronouncement.
Article 145(3) provides that,
“The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution shall be five.”
The crux of the prayer in 2015 petition was to constitute an independent and neutral collegiums/ selection committee for recommending the names for members to the Election Commission.
The Second Petition
Second writ petition was filed by Ashwini kumar Updhyaya in 2017, the brief of the prayers of his petition, is as follows-
a) 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;
b) Direct the Central Government to take appropriate steps to provide independent secretariat to the Election Commission of India;
c) Direct 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;”
The Third Petition
Third petition was filed in 2021, by Association for Democratic Reforms, their prayers were-
“i. Issue an appropriate writ, order or 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.
ii. Direct the Respondent to implement 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; Second Administrative Reform Commission in its fourth Report of January 2007; by the Dr. Dinesh Goswami Committee in its Report of May 1990; and by the Justice Tarkunde Committee in its Report of 1975.”
In the last petition, filed in 2022, Dr. Jaya Thakur, sought following relief-
“issue a writ order or directions in the nature of Mandamus to the Respondents to implement an independent and transparent system for appointment of members of the election Commission on the lines, recommended by the Report of the Committee on Electoral Reforms of May 1990, formulated by the Ministry of Law and Justice, Government of India, the Report of Second Administrative Reforms Commission, Government of India of 2007 and the Report of Law Commission of India on Electoral Reforms of March 2015.”
Submission of the Petitioners
In 2015 Petition
- An independent Election Commission is necessary for a functioning democracy as it ensures Rule of Law and free and fair elections. Article 324(2) mandates that Parliament should make a just, fair and reasonable law. The provision for making a law was rested on the hope that in due course of time, the Government would exhibit initiative to make such a law and ensure independence and integrity of the Members of the Election Commission. It was contended that there is a vacuum.
- The convention invoked by the Union of India of appointments being made from Members of the Bureaucracy, is criticised as being not a healthy convention. It is for the reason that it is bereft of transparency, objectivity and neutrality. This system is inaccessible to public. The Executive alone being involved in the appointment, ensures that the Commission becomes and remains a partisan Body and a branch of the Executive.
- It was further contended that the Election Commission resolves various disputes between various political parties including the Ruling Government and other parties. This means that the Executive cannot be the sole participator. The practice falls foul of Article 14.
In 2017 Petition
- There is a lacuna in the matter of appointment under Article 324. Of the twelve categories of unelected Constitutional Authorities, it is only the Election Commission and the National Commission for Scheduled Castes, where qualifications and eligibility are not laid down in the Constitution or the Statute.
- Like the Judiciary, the Election Commission must display fearless independence. In the absence of norms regarding the appointment, a central norm, viz., institutional integrity is adversely affected. An independent appointment mechanism would guarantee eschewing of even the prospect of bias. Favouritism would be largely reduced.
In 2021 Petition
The vacuum, which is projected must be conceded as a democratic space which the Founding Fathers of the Constitution, left open for the future Parliament to fill-up. It was contended that the Constituent Assembly not being an elected Body in the real sense, left many things to Parliament, which could claim better democratic legitimacy.
In 2022 Petition
- There is ad- hocism flowing from the legislative vacuum. Regional Commissioners have never been appointed since 1951. The role of the Election Commission is such that in a modern election process, it can be abused by simply playing with the election schedule.
- Appointment is reduced only to Bureaucrats, that too, majorly IAS Officers. The IAS Officers work in close alliance to their political masters. Appointment must be from a more broad-based pool of talent like Judicial Members. The Secretariat must have sufficient manpower.
Analysis of the Court
- Election Commission of India has been charged with the duty and blessed with extraordinary powers to hold elections to both Parliament and state legislatures from time to time. This is an enormous task. The power it possesses under Article 324 is plenary. It is only subject to any law which may be made by Parliament or by the State Legislature.
- Undoubtedly, the Election Commission is duty bound to act in a fair and legal manner. It must observe the provisions of the Constitution and abide by the directions of the Court. The same being done, it can draw upon a nearly infinite reservoir of power. Once the poll is notified, [which again is a call to be taken by the Election Commission itself, and indeed capable of being misused and the subject of considerable controversy, if bias or subservience to the powers that be, is betrayed], it assumes unusual powers.
- Its writ lies across Governments over the length and breadth of the country. Officers of the Government who come under its charge become subject to the superintendence of the Commission. The fate of the political parties and its candidates, and therefore, of democracy itself to a great measure is allowed to rest in the hands of the Election Commission.
- Awaiting the outcome of the poll to question the election before the tribunal may result in many illegal, unfair and mala fide decisions by the Election Commission passing muster for the day. Once the election results are out, the matter is largely reduced to a fait accompli. In fact, many a time an omission or a delay in taking a decision can itself be fatal to the holding of a free and fair poll. The relief vouchsafed in an election petition may not by itself provide a just solution to the conduct of election in an illegal, mala fide or unfair manner.
- The purpose of achieving power is to run the Government. No doubt, the Government must be run in accordance with the dictate of the Constitution and the laws. Political parties not unnaturally come out with manifestos containing a charter of promises they intend to keep. Without attaining power, men organised as political parties cannot achieve their goals.
- Power becomes, therefore, a means to an end. The goal can only be to govern so that the lofty aims enshrined in the directive principles are achieved while observing the fundamental rights as also the mandate of all the laws. What is contemplated is a lawful Government. So far so good. What, however, is disturbing and forms as we understand the substratum of the complaints of the petitioner is the pollution of the stream or the sullying of the electoral process which precedes the gaining of power. Can ends justify the means?
- The essential hallmark of a genuine democracy is the transformation of the ‘Ruled’ into a citizenry clothed with rights which in the case of the Indian Constitution also consist of Fundamental Rights, which are also being freely exercised and the concomitant and radical change of the ruler from an ‘Emperor’ to a public servant. With the accumulation of wealth and emergence of near monopolies or duopolies and the rise of certain sections in the Media, the propensity for the electoral process to be afflicted with the vice of wholly unfair means being overlooked by those who are the guardians of the rights of the citizenry as declared by this Court would spell disastrous consequences.
- The cardinal importance of a fiercely independent, honest, competent and fair Election Commission must be tested on the anvil of the rule of law as also the grand mandate of equality. 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. Equally, the sterling qualities which we have described which must be possessed by an Election Commission is indispensable for an unquestionable adherence to the guarantee of equality in Article 14.
- In the wide spectrum of powers, if the Election Commission exercises them unfairly or illegally as much as he refuses to exercise power when such exercise becomes a duty it has a telling and chilling effect on the fortunes of the political parties. Inequality in the matter of treatment of political parties who are otherwise similarly circumstanced unquestionably breaches the mandate of Article 14. Political parties must be viewed as organisations representing the hopes and aspirations of its constituents, who are citizens. The electorate are ordinarily, supporters or adherents of one or the other political parties.
- Therefore, any action or omission by the Election Commission in holding the poll which treats political parties with an uneven hand, and what is more, in an unfair or arbitrary manner would be anathema to the mandate of Article 14, and therefore, cause its breach.
- The Election Commissioners including the Chief Election Commissioner blessed with nearly infinite powers and who are to abide by the fundamental rights must be chosen not by the Executive exclusively and particularly without any objective yardstick.
- An Election Commissioner is answerable to the Nation. The people of the country look forward to him so that democracy is always preserved and fostered. We may qualify the above observations by stating that true independence of a Body of persons is not to be confused with sheer unilateralism. This means that the Election Commission must act within the Constitutional framework and the laws. It cannot transgress the mandate of either and still claim to be independent. Riding on the horse of independence, it cannot act in an unfair manner either. Independence must be related, finally, to the question of ‘what is right and what is wrong’.
- A person, who is weak kneed before the powers that be, cannot be appointed as an Election Commissioner. 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, forming the very foundation of the democracy. An independent person cannot be biased. Holding the scales evenly, even in the stormiest of times, not being servile to the powerful, but coming to the rescue of the weak and the wronged, who are otherwise in the right, would qualify as true independence.
Upholding the constitutional values, which are, in fact, a part of the Basic Structure, and which includes, democracy, the Rule of Law, the Right to Equality, secularism and the purity of elections otherwise, would, indeed, proclaim the presence of independence. Independence must embrace the ability to be firm, even as against the highest. Not unnaturally, uncompromising fearlessness will mark an independent person from those who put all they hold dear before their Karma.
- It is important that the appointment must not be overshadowed by even a perception, that a ‘yes man’ will decide the fate of democracy and all that it promises. Certainty, the darkest apprehensions of the founding fathers as buttressed by the reports and other materials, unerringly point to the imperative need to act.
- The electoral scene in the country is not what it was in the years immediately following the country becoming a Republic. Criminalisation of politics, with all its attendant evils, has become a nightmarish reality. The faith of the electorate in the very process, which underlies democracy itself, stands shaken. The impact of ‘big money’ and its power to influence elections, the influence of certain sections of media, makes it also absolutely imperative that the appointment of the Election Commission, which has been declared by this Court to be the guardian of the citizenry and its Fundamental Rights, becomes a matter, which cannot be postponed further.
- The court took note of the fact that for the appointment to the Director of the Central Bureau of Investigation [which is not a constitutional post], Section 4A of Delhi Special Police Establishment Act, 1946, contemplates that appointment shall be made by the Central Government on the basis of recommendation of a committee consisting of the Prime Minister as the Chairperson, the Leader of the Opposition recognised in the House of People, as such, or where there is no such Leader of the Opposition, then, the Leader of the Single Largest Opposition Party in the House and the Chief Justice of India or a Judge of the Supreme Court nominated by him.
Similarly, the court found in regard to the appointment of the Chairperson and Members of the Lokpal, under the Lokpal and Lokayuktas Act, 2013.
Protection to additional Commissioners
One of the contentions raised by the petitioners was the Court must provide for the same protection to the Election Commissioners as is available to the Chief Election Commissioners. In this regard, Art 324(5) provides that,
“Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.”
On this contention, the court held that,
“if the Election Commissioner is accorded the protection available under the first proviso to the Chief Election Commissioner, the result will be as follows. He would be entitled to not only claim immunity from removal except on being impeached like a Judge of the Supreme Court but he would be conferred with a further protection even after the impeachment or before the impeachment starts, that the Chief Election Commissioner must also recommend the removal.
We would think that no more need be said and we reject the contention…. It is for Parliament acting in the constituent capacity to consider whether it would be advisable to extend the protection to the Election Commissioners so as to safeguard and ensure the independence of the Election Commissioners as well.”
Separate Secretariat to Election Commission
One of the contentions was, that there must be an independent Secretariat to the Election Commission of India and the its expenditure must be charged on the Consolidated Fund of India on the lines of the Lok Sabha/Rajya Sabha Secretariat.
Because, 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. It would not be unnatural if 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. This is apart from the fact that cutting off the much-needed funds and resources will detract from its efficient functioning.
The Final Decision of the Court
Speaking for Justice Aniruddha Bose, Justice Hrishikesh Roy, Justice C.T. Ravikumar, Justice KM Joseph held that,
“I. We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India. This norm will continue to hold good till a law is made by the Parliament.
II. As regards the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India is concerned, the Court makes a fervent appeal that the Union of India/Parliament may consider bringing in the necessary changes so that the Election Commission of India becomes truly independent.”
Justice Ajay Rastogi Judgment
Justice Rastogi Wrote his separate judgment. He showed his agreement to the entire conclusion of the Justice K.M. Joseph Judgment, but added his further remarks. His conclusion was as follows-
“Until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect:
(1) 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.
(2) 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.
(3) The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.”
Anoop Baranwal v. UOI (2023)