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Context

• Recently, The Supreme Court of India in a judgment gave directions to reform the process of appointment of Election Commissioners in the Election commission of India.
• In this context, this edition of the burning issue will elaborate on this judgment and talk about the various facets of this judgment.

Background of the case

• In 2015, a public interest litigation was filed by Anoop Baranwal challenging the constitutional validity of the practice of the Centre appointing members of the Election Commission.
• In October 2018, a two-judge bench of the SC referred the case to a larger bench since it would require a close examination of Article 324 of the Constitution, which deals with the mandate of the Chief Election Commissioner.
• In September last year, a five-judge Constitution bench headed by Justice KM Joseph began hearing the case and almost a month later, the verdict was reserved.

About the Election Commission of India

• During the initial days: At first, there was only a Chief Election Commissioner on the commission. There are currently two Election Commissioners in addition to the Chief Election Commissioner. In 1989, two additional Commissioners were appointed for the first time; however, their terms were extremely limited, lasting only until January 1, 1990.
• Multi-member body: Two additional Election Commissioners were appointed later, on October 1, 1993. Since then, the idea of a Commission with multiple members and the authority to make decisions by majority vote has been in place.
• Appointment: The Chief Election Commissioner and the Election Commissioners are both appointed by the President. Their tenure is six years, or until they turn 65, whichever comes first.
• Status as Indian Supreme Court Judges: They have the same status as Indian Supreme Court Judges and receive the same benefits and salary. Parliament must impeach the Chief Election Commissioner in order to remove him or her from office.

What is the final judgment?

• In the case of Anoop Baranwal v. Union of India, a five-judge bench of the Supreme Court unanimously held that appointments to the constitutional posts of Chief Election Commissioner and Election Commissioners are to be made by the President of India, on the basis of the advice of a three-member committee, comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, i.e. the lower house of the Parliament (or Leader of the largest party in Opposition in the lower house, in absence of a Leader of Opposition), and the Chief Justice of India (CJI).

What is the current process of appointment?

• As per the current process, the Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM.

Significance of this judgment

• Reducing the executive control: The judgment reaffirms and reiterates the importance of divesting the control of the executive over a body that is crucial to the conduct of free and fair elections.
• Strengthening the independence of ECI: The judgment is being seen as a step forward in the direction of strengthening the independent authority and functioning of the Election Commission which alone is mandated to conduct a free and fair election under Article 324 of the Constitution”.
• Protecting CEC and other ECs: It will automatically protect the Election Commissioners and the CEC from removal midway through their term and is therefore vital in protecting the Election Commission’s independence.

Why court found it relevant to intervene?

• According to Article 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 crux of the challenge is that since there is no law made by Parliament on this issue, the Court must step in to fill the “constitutional vacuum.”
• Article 324(5) further authorizes the President to determine the conditions of service and tenure of the Election Commissioners, again, subject to any law made by the Parliament. Notably, a law has been framed by the Parliament with respect to Article 324(5)- the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, however, no such law has been promulgated under Article 324(2)- concerning appointments to the Election Commission of India (ECI)- despite the constitutional expectation.
• Debates of the Constituent Assembly: The Court’s verdict is based on a reading of the debates of the Constituent Assembly to ascertain what the founding members of the Constitution envisaged the process to be and an interpretation of similar provisions in the Constitution.
• Law made on this behalf by Parliament: The deliberate addition of the words “subject to the provisions of any law made on that behalf by Parliament” after prolonged discussions indicates that “what the Founding Fathers clearly contemplated and intended was, that Parliament would step in and provide norms, which would govern the appointment to such an important post as the post of Chief Election Commissioner and the Election Commissioners.”
• Examples of other commissions: The ruling examined a number of provisions in the Constitution, including the ones relating to the powers of the Supreme Court and High Court; establishing the SC, ST and Backward Classes Commissions, etc. where the Constitution uses the phrase “subject to the provisions of any law made by Parliament”. The Court finds that while legislation has been supplemented for those provisions, there is no law on the appointment of the CEC even 70 years after independence.

Criticism of the judgment

• Former Union law secretary P K Malhotra, who had also headed the Legislative Department in the law ministry, said that through the verdict, the top court is legislating in the domain of Parliament.
• However, the mode of appointment directed by the SC does not find any place in the Indian Constitution and can be challenged by the executive as judicial activism or judicial overreach.

Government response

• The government argued that “in the absence of such a law, the President has the constitutional power.” The government has essentially asked the court to exhibit judicial restraint.
• The three-member committee has not had the best track record with regard to the appointment of the CBI Director. Whether this new appointment procedure will be able to bolster trust and confidence among different stakeholders, on the Election Commission and its impartiality, needs to be seen.

Supreme court’s argument

• The court in its ruling discusses at length its intention to “maintain a delicate balance” on the separation of powers. The court cannot usurp what is purely a legislative power or function but where there exist veritable gaps or a vacuum legislative field, the Court may not shy away from what essentially would be part of its judicial function.
• The ruling cites past instances of the Court stepping in to fill a gap in the law, including the Vishaka guidelines to curb sexual harassment in the workplace, and the interpretation of the process of appointment of judges.

One more issue highlighted by SC

• As per Section 4 of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991, the Chief Election Commissioner is entitled to a term of 6 years, but they have to vacate the office upon attaining the age of 65 years.
• The SC Bench had enquired during the proceedings that to fulfill the mandate of the provision, the Government could have considered an officer who could have completed the full term of six years.
• But none of the Election commissioners have been able to complete the 6-year tenure. The Supreme Court observed that the appointment of an Election Commissioner with a tenure of fewer than six years is a clear breach of law pursuant to the provisions of the Act of 1991.

Conclusion

• Article 324(2) vested the Parliament with the job of framing a law to determine the appointment procedure, and to that effect, SCI’s directions are temporary in nature, until the legislative vacuum is filled.
• However, the judgment will have a precedential value in that any law passed under Article 324(2) will be tested on the touchstone of whether it adequately protects the independence of the Election Commission from the executive.
• As far as the effectiveness of this scheme of appointment is concerned, the track record of this three-member committee has not been impressive, and it remains to be seen whether the state of the ECI remains the same, improves, or worsens.

“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.”