In a constitutional democracy, institutions and the individuals who run them are important. But when the institutions are captured or discredited for the sake of maintaining or strengthening the executive’s power, it poses a serious threat to the constitutional tenets. The executive, in a way, is the most ‘dangerous’ branch of the State, and therefore, it is essential to check its excesses through constitutionally permitted means.
We are once again in an era where the executive and Parliament are trying to substantially annul the directives of the Supreme Court. The Delhi Ordinance on the transfer and posting of government employees, which is now becoming a statutory law, is an example. Another example is the Centre’s move to re-introduce the offence of sedition—which the SC almost suspended last year—by adding a different terminology in the ‘Bharatiya Nyaya Sanhita’. But the most disturbing legislative move is the Centre’s attempt to invalidate the Supreme Court’s verdict on the committee to be constituted for appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). The Court issued the directives on May 2 this year, in Anoop Baranwal v. Union of India.
Let us look at what the Supreme Court did in Anoop Baranwal. The Court dealt with Article 324(2) of the Constitution, which says that the appointment of the CEC and ECs shall be made by the president, “subject to the provisions of any law made in that behalf by Parliament”. Parliament did not make any law in this regard. Thus, the appointment of the CEC and the ECs continued to be the prerogative of the executive. It enabled the government to install its own people at the helm of affairs to conduct elections.
It was contended before the Court, relying on several documents including the Law Commission Report, that an independent Election Commission is possible only if its members are selected by an independent body where the government does not have power over. In a rare instance of judicial activism, the top court said that unless a law in this regard is made by Parliament, a committee consisting of the prime minister, the leader of the opposition (or the leader of the largest party in the opposition) in the Lok Sabha, and the Chief Justice of India should choose the umpires of India’s elections.
Regarding the selection committee, the Centre might say the Court made only an ad-hoc arrangement till the law is made, and that with the new law in the making, the directives could turn redundant. To expose the folly of this argument, one needs to understand the spirit of the judgment in Anoop Baranwal.
The judgment was not merely in line with the requirement to have ‘some law’ made by Parliament to appoint the CEC and ECs. The Court said that “The founding fathers (of the Constitution) clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission. … A law could not be one to perpetuate what is already permitted, namely appointment at the absolute and sole discretion of the executive.”
The Court had analysed the Constituent Assembly debates on the issue almost in their entirety to reach this conclusion. The Court further held that “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.”
The present move of the Centre clearly negates the spirit of the verdict in Anoop Baranwal. It proposes a law where the ruling dispensation will have the ultimate say on the choice of the CEC and ECs. As per Section 7 of the new bill, the three-member selection committee will be headed by the prime minister, and the other two members will be a Union cabinet minister and the leader of opposition in the Lok Sabha. The Union minister will be nominated by the PM. The presence of the leader of opposition is, therefore, only formal and is practically of no impact. It will be essentially a system where the PM chooses the CEC and ECs. The zone of consideration will be limited to officers who currently serve the government or have acted as secretary to the Government of India or have held equivalent posts. A panel headed by the Union cabinet secretary will carry out the initial screening and the names of the shortlisted candidates will be sent to the committee headed by the PM. Section 8(1) of the bill says that the selection committee can regulate its own procedure. According to Section 8(2), even a person who is not shortlisted by the panel can be appointed. Thus, arbitrariness is not only inbuilt but also facilitated by the provisions.
This is exactly the situation which the Court wanted to prevent in Anoop Baranwal. The regime at the Centre has shown its obstinacy to institute a weak poll panel of its choice. Ultimately, the Supreme Court may have to decide on the constitutionality of the new law once it is enacted.
The top court has a mixed track record in ensuring the structural and functional independence of the ‘fourth branch’ institutions. The conventional idea of conceptualising the State vis-a-vis the trinity comprising the executive, legislature and the judiciary is no longer a sound principle in terms of modern constitutionalism. The fourth branch essentially comprises multiple establishments including the Enforcement Directorate, the Comptroller and Auditor General of India, the Central Vigilance Commission, and of course, the Election Commission, among others. If these agencies act as instructed by the Centre, the system turns to be an autocracy under the label of democracy.
It is nobody’s case that the inclusion of the CJI in the selection committee will in itself ensure the functional autonomy of the Election Commission. Yet, the SC judgment was a step to prevent the possible arbitrariness in the process of appointing the CEC and ECs. It is high time that the structural and functional independence of the fourth branch is taken seriously by the SC. The appointments to these institutions as well as their running should be insulated from the executive’s onslaught. That requires a great deal of judicial assertion, imagination and statesmanship.
Kaleeswaram Raj
Lawyer, Supreme Court of India. Argued in the SC for an independent body to select the Election Commission
(kaleeswaramraj@gmail.com)
(Tweets @KaleeswaramR)