A Constitution Bench of the Supreme Court headed by Justice KM Joseph in Anoop Barnwal vs UOI has directed the Government that till a law is framed by the Parliament for the appointment of CEC and Election Commissioners, their appointment will be done by the President on the advice of a committee consisting of PM, Leader of Opposition in Lok Sabha and the CJI. The court was quite peeved that despite a clear stipulation in Article 324(2) that the modality of appointing CEC should be framed by the Parliament, no such Standard Operating Procedure (SoP) was in place.
The Election Commission Act of 1991 which delineates the service conditions of CEC/ECs provides nothing in terms of the selection process. As a matter of fact, even the Cabinet is not engaged in the selection process as per Article 77 of the Constitution (Transaction of Business Rules), but just the Law Minister and PM. In view of the Bench, the Supreme Court was filling up a big vacuum in law. As the free and fair election is a basic structure, in 378 highly readable pages the judges have provided a flavor of the debate in the Constituent Assembly and reports of various committees, pertaining to what constitutes independence of the EC in a democracy like ours.
It notes how Prof SL Saxena, a member of the Constituent Assembly, had clearly foreseen how such a power in the hands of the PM can be abused and suggested that the nominees of the PM must be approved by a two-thirds majority in both Houses of the Parliament. Both KM Munshi and KT Saha supported KT Saha. SP Mukherji, another member, suggested that minorities should be adequately represented. However, these suggestions were not incorporated, except to leave it tothe Parliament to draft an appropriate law.
In 1990 the Dinesh Goswami Committee suggested that the CJI and LoP should select the CEC. The NCRWC (2002) suggested a broad-based committee comprising the PM, LOP of both Lok Sabha and Rajya Sabha, and Speakers of Lok Sabha and Rajya Sabha. The ARC (2009) suggested a collegium system like the CVC where the PM, CJI and LoP are members. The Law Commission in 2015 also suggested a collegiums system for the Director CBI to select the CEC and ECs. The Supreme Court has opted for the collegium model of CVC to select CEC/ ECs. The judges expatiated on their definition of independence for CEC, which goes beyond administrative competence and honesty. The independence in question is ‘what is right and wrong’. It notes that a ‘person who is in a state of obligation fails the nation’ can have no place in the conduct of elections. Uncompromising fearless application of rule of law must not be overshadowed by a person/ a yes-man who will decide the fate of democracy. It was Ahron Barak, the famous President of the Supreme Court of Israel, who wrote: Democracy is a complex normative concept. The sovereignty of the people is exercised through free elections.’
The Court brings up the selection process of Election Commissioners which is a consultative process. In the USA, the Federal Commissioners are appointed by the President with the advice and consent of the Senate. In Canada, the CEO is appointed by the House of Commons and he reports directly to the Parliament.
The Court then ventures into the vexatious area if it is usurping the legislative role of the Parliament and treading upon the concept of separation of powers, which is a basic structure of the Constitution. The judges observe that ordinarily, the court cannot usurp legislative power or function. However, where it notices legislative inertia in terms of fundamental rights and constitutional goals ‘where there is a veritable vacuum,’ the court will not be shy ‘from suggesting the legislative changes. Drawing on the concept of constitutional silence, the judges observe that the interpretation of the Constitution cannot be frozen by its original understanding. A case in point is the judgment of the court unequivocally asserting that the Right to Privacy is part of the Right to Life in the Puttaswamy Case (2017). Another landmark judgment drawing upon guidelines to deal with sexual harassment of women in public places is the Vishakha Rani Case (1997). Benjamin Cardozo, the celebrated Judge of the US Supreme Court, had observed: ‘Judges legislate only between gaps. He fills the open spaces in law’. Justice Joseph and his brother judges seem to follow in the footsteps of Cardozo. Judge-made law is now well-received throughout the world.
The judgment touches on two more aspects in regard to the functioning of the CEC. It notes with dismay that expenditure pertaining to the CEC is not charged expenditure, unlike judges of the Supreme Court and High Courts and the CAG, whose salary, etc are not put to vote in terms of Article 112(3). It implores the Government to do away with the anomaly as it will go a long way in protecting the independent functioning of the CEC. The Court, however, skirted the issue of scrapping the provision of CEC recommending the removal of other ECs in Article 324(5).
All the same, this judgment deserves three cheers for putting its thumb on a very regressive system where CECs /ECs have become handmaidens, if not cheerleaders of the Government in power. With its dubious reputation of using independent institutions to settle scores with political adversaries, a pliant CEC hand-picked by the party in power is a clear negation of independent and impartial conduct of the election. It may be recalled that the Supreme Court had famously struck down the selection of PJ Thomas as CVC in 2011, as it was an integrity institution. And Thomas was facing a chargesheet in the CBI Court. The CEC and ECs can also be viewed as integrity institutions. The Court has rightly highlighted that the nominees to the post of CEC /ECs are not only administratively competent but fiercely independent to uphold constitutional morality, equality, and rule of law. One hopes the Modi Government puts in place transparent guidelines for selecting sentinels for the Election Commission, without further vacillation. Further, a similar collegium system should also be put in place for selecting the CAG, who has a critical role in exercising financial vigilance over Government programmes, procurements and contracts.
(Dr Misra is a Professor Emeritus)