This winter session of Parliament has seen the passage of the Election Commissioners Bill. The Bill responds to a judgment of the Supreme Court (SC) earlier in the year: Anoop Baranwal vs Union of India. In that judgment, the SC had held that the existing method of selecting election commissioners — i.e., by the President (acting on the aid and advice of the cabinet) — was unconstitutional. The SC proposed an interim arrangement — a selection committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI) — as an interim measure, until the time that Parliament steps in and enacts a law on the subject.
The law in question does so by replacing the CJI with a Union minister, thus giving an unassailable majority to the executive in the selection committee. Unsurprisingly, this has caused controversy. It has been argued in defence of the law that Parliament has only taken up the invitation proffered to it by the SC, and indeed, by the Constitution: Namely, to draft and enact a law codifying the process of selection of election commissioners.
This defence, however, misses a crucial feature of the SC judgment in Anoop Baranwal. In Anoop Baranwal, the Court was concerned with interpreting Article 324(2) of the Constitution. According to Article 324(2), the task of framing a law for selecting election commissioners was left to Parliament, and until such time Parliament enacted it, it was to be performed by the President. The intention, clearly, was that the President’s role would be a stop-gap one until Parliament enacted a law. That never happened for 70 years, thus creating a settled constitutional practice whereby the President — that is, the executive — was in charge of appointments to the Election Commission (EC). Thus, a temporary measure became effectively permanent.
On a study of the Constituent Assembly debates, the Court found that not only was the President’s role meant to be a stop-gap, but that also, the Constituent Assembly was clear that whatever process was finally adopted for selecting the members of the EC, it would have to secure the institutional independence of the Commission. Thus, Article 324(2) did not give Parliament a carte blanche to enact any law on appointments, but one that was consistent with the principles of institutional independence.
The reason for this is grounded in the role of the EC in contemporary constitutional democracies. The EC is one of a set of institutions popularly known as “fourth branch institutions”, or “integrity institutions”. These institutions — which include other bodies such as human rights commissions and information commissions — play the role of setting up, and implementing, the infrastructure through which crucial civil and political rights are made meaningful. In the case of the EC, for example, its role is to guarantee free and fair elections, through a range of actions, from overseeing the physical infrastructure of voting to registering political parties to enforcing a code of conduct, and so on.
For fourth branch institutions to perform their functions, it is, therefore, obvious that they must be independent of the wings of the State, especially the executive. This is particularly crucial in the case of an EC in a parliamentary democracy, where the political executive is one of the players in the electoral game. Independence from the executive, in turn, has two features: Operational independence and institutional independence. The second category, in particular, pertains to issues around appointment, tenure, dismissal, and other such.
It is well-established that control over the appointment process is directly connected with institutional independence. This is why, across the world, constitutional democracies do not grant to the executive the power of EC appointments. Electoral commissions are either non-partisan (that is, they exclude the participation of politicians) or multi-partisan (that is, they ensure the participation of politicians from both the government and the Opposition, without sanctioning either with a veto power). In Anoop Baranwal, in his concurring judgment, justice Ajay Rastogi demonstrated that India is an isolated outlier in granting executive control over EC appointments.
In this context, it, therefore, becomes important to separate two things. It is true that Anoop Baranwal’s interim arrangement – that of a selection committee with the CJI as the “balancing vote” between the government and the Opposition — is not binding upon Parliament. There is no constitutional requirement for the CJI to be a part of the selection committee, and parliamentary legislation may exclude them altogether. The problem arises, however, when the legislation replaces the CJI with another member of the political executive, and thus fails the test of institutional independence. This is what the law in question does, by making the executive — a player in the electoral game — empowered to select the referee of the electoral game.
It is in this way that the law violates the constitutional position, as articulated by the SC in Anoop Baranwal. It is not for the Court to determine the composition of the selection committee — that is, undoubtedly, the job of Parliament. However, certain constitutional principles constrain Parliament’s discretion in doing so. It is those principles that must be applied to the present law, and on application, it clearly emerges that the law, in its present form, is unconstitutional.
Gautam Bhatia is a Delhi-based advocate. The views expressed are personal
New Bill casts a cloud over EC appointments
4
0
22.12.2023
This winter session of Parliament has seen the passage of the Election Commissioners Bill. The Bill responds to a judgment of the Supreme Court (SC) earlier in the year: Anoop Baranwal vs Union of India. In that judgment, the SC had held that the existing method of selecting election commissioners — i.e., by the President (acting on the aid and advice of the cabinet) — was unconstitutional. The SC proposed an interim arrangement — a selection committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI) — as an interim measure, until the time that Parliament steps in and enacts a law on the subject.
The law in question does so by replacing the CJI with a Union minister, thus giving an unassailable majority to the executive in the selection committee. Unsurprisingly, this has caused controversy. It has been argued in defence of the law that Parliament has only taken up the invitation proffered to it by the SC, and indeed, by the Constitution: Namely, to draft and enact a law codifying the process of selection of election commissioners.
This defence, however, misses a crucial feature of the SC judgment in Anoop Baranwal. In Anoop Baranwal, the Court was concerned with interpreting Article 324(2) of the Constitution. According to Article 324(2), the task of framing a law for selecting election commissioners was left to Parliament, and........
© hindustantimes
visit website
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Rami G Khouri
Ali Fathollah-Nejad
Nikkei Editorial
