Let it be now stated in unmistakable terms: The Supreme Court of India (SC) remains the most powerful centre of political power in the country at a time when almost every political issue is a matter of adjudication before the Court. A neutral body for the selection of the Chief Election Commissioner (CEC) and other Election Commissioners was the principal relief sought in Anoop Baranwal v. Union of India, which has been granted by the Court as per Thursday’s verdict. The judgment revives the era of judicial activism. This time, it acted against an aggrandising executive, and not against the follies of a weak coalition at the Centre, as happened earlier.
The bone of contention of the petitioners was that as per Article 324(2) of the Constitution, the appointment of the CEC and ECs, though to be made by the President, should be done based on a law to be promulgated. Yet, no law was enacted by Parliament in this regard. Taking advantage of this scenario, the dispensation at the Centre chooses the CEC and ECs, who are often seen to act in tune with those in power and those who select them. Therefore, the petitioners pleaded for an independent body to appoint the CEC and the ECs to ensure functional autonomy for the panel.
There is yet another issue with the constitutional provision. According to the proviso to Article 324(5), a special protection against removal is given to the CEC while not extending the said immunity to the other ECs. The proviso says that “the 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”. This practically means that the only way to remove the CEC is to get him impeached by Parliament which is difficult, but not impossible. The same provision also says that the conditions of service of the CEC “shall not be varied to his disadvantage after his appointment”. This immunity granted to the CEC loses its purpose when the selection is vitiated by arbitrariness or favouritism. That apart, for want of security of tenure, the other ECs might be more susceptible to the executive — this was the apprehension placed before the Supreme Court.
An independent committee consisting of the prime minister, leader of the opposition in the Lok Sabha or the leader of the largest party in opposition and the Chief Justice of India for selecting the CEC is a great leap towards a sustainable democracy. The vacuum in Article 342 is essentially a democratic space, which the Constituent Assembly did not want to occupy by way of any prescription whatsoever. This space was left to the future Parliament. The elected Parliament was supposed to legislate on this issue with a greater element of democratic legitimacy. That was a constitutional aspiration rather than a vacuum. It was, however, not fulfilled. As a result, the executive enjoyed the benefit of appointing people as chosen by it as the CEC and ECs. One of the main concerns was that this led to perceptions of bias of the Commission in favour of the ruling party. The silence of the Constitution was rather purposive, imaginative and democratic, whereas that of Parliament was clandestine, audacious and undemocratic. The top court set this right with its March 2 judgment.
The functional autonomy of the CEC and the EC has a direct link with the process by which they are selected. In an electoral autocracy, the executive would prevail over the poll panel in varied ways. As stated by the Court, “a vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning.” The SC’s verdict, apart from ensuring fairness in the process, can act as a constitutional lesson in India’s troubled times. It found that in India, there is “an unrelenting abuse of the electoral process”. The judgment recognises the fine distinction between conventional democracy and constitutional democracy. In the former, the majority alone matters. In the latter, it is the Constitution that matters.
In the judgment, the country finds an activist judiciary after a long time. This revival of judicial activism is well supported by legal reasoning and binding precedents. It has come out during a dark phase of majoritarianism with an aggrandising executive. This adds to the intrinsic value of the judgment. The allegation of judicial excess only reflects the Centre’s conventional stand based on Montesquieu’s principles of separation of powers.
Democracies across the world are under threat for a variety of reasons as explained by Steven Levitsky and Daniel Ziblatt in How Democracies Die (Viking, Penguin Books, 2018) and Philip Coggan in The Last Vote (Allen Lane, Penguin Books, 2013).
Let there be no euphoria that the SC verdict is a pill for every ailment in our electoral democracy. But by correcting an indefensible method of selection of the commission, the Court has significantly added to the sanctity of the process.
The writer is a lawyer at the Supreme Court of India who argued in support of the petitioners in this case
This article first appeared in the print edition on March 3, 2023, under the title, ‘More independent commission’
