Opinion SC’s Election Commission judgment upsets a delicate balance

The judgment is questionable on several grounds. The Court erroneously locates the constitutional intent behind Article 324(2) in the Constituent Assembly debates, contrary to its plain language and settled principles of statutory interpretation, which posit that a speech made in the course of a legislative debate is at best indicative of the subjective intent of the speaker and cannot prevail over the plain words of a constitutional text. The language of the provision is self-explanatory and reads thus:

Article 324: “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…”

To read the words “subject to the provision of any law to be made by Parliament” in Article 324(2), not as a parliamentary option but a constitutional command to Parliament to peremptorily enact a different stand-alone law, is a fraught exercise in stretched constitutionalism.

Indeed, the absence of law contemplated in Article 324 (2) for the last seven decades represents a conscious legislative rejection of a special law on a subject covered by the constitutional provision. Such a decision is entitled to judicial deference premised on cooperation between the three organs of the State which share a “fractured” constitutional power and responsibility. The election watchdog’s generally appreciated discharge of its plenary remit under Article 324, some exceptions notwithstanding, could have dispelled the Court’s apprehension that the extant system of appointments to the election body cannot yield appointments of persons capable of ensuring the commission’s institutional independence.

In the facts of the case, the Court’s rightful refusal to grant a writ of mandamus does not sit well with its operative directions, which indirectly serve the same purpose and betray a structural inconsistency in its logic. Also, an unprecedented direction of the Court regarding the contours of a proposed future law is a fatal jurisdictional error, being wholly inconsistent with the philosophy of parliamentary democracy predicated on the law-making function as an exclusive preserve of the legislature.

Notwithstanding Justice Cardozo’s cited caution, the Court allowed itself to pursue “its own ideal of beauty or of goodness”, disregarding a salutary principle of democratic constitutionalism that courts cannot invent a moral norm to limit an express constitutional intendment or to justify a preferred interpretation. The judgment also does not sit well with Jethro Brown’s wisdom, that “…often there are no gaps…” and that “we shall have a false view of the landscape if we look at the waste spaces only and refuse to see the acres already sown and fruitful…”

It is submitted that the institutional integrity of the Election Commission in a functional democracy can be best secured through processes that recognise the bounds of constitutional power. Constitutional change is a function of parliamentary processes and democratic politics in action. A virtual judicial rewriting of Article 324(2) in Anoop Baranwal by imagining an absence of law is a foray into dangerous territory. It can fuel intra institutional conflict and infract “inter-branch equality”, thereby upsetting the delicate equilibrium of power dispersed between the designated organs of the State. Indeed, the unambiguous articulation of constitutional intent in Article 324 (2) does not admit of “judicial valour”. Only by recognising the limitations of judicial power can we ensure a continuing interpretative finality vested in the highest Court. The Court may wish to ask itself whether, consistent with the stabilising function of judicial restraint and to secure comity between constitutional institutions, it could have avoided a scathing censure of the executive and legislative branches for a perceived “legislative lassitude”, for which, with apologies to their Lordships, the governorship of the nation by “the brethren in black robes” can hardly be our answer.

Indisputably, a steadfast commitment to balanced constitutionalism is an absolute imperative to reinforce the foundations of our constitutional democracy.

The writer is Senior Advocate, Supreme Court and former Union Minister for Law and Justice