The recent judgement of the Supreme Court (SC) to appoint the members of the Election Commission of India (ECI) by a partisan cum judicial panel is lauded by many as historic and landmark. The judgement is certainly historic, it has filled the void for a law being in pending for a very long time, dating back to when the constitution was being drafted in the constituent assembly itself. The assembly instead of legislating on this, had entrusted the future parliament with a constitutional provision to provide for the procedure of appointment of Chief Election Commissioner (CEC) and Election Commissioner (ECs). However, despite having a constitutional mandate and being advised by various committees and commission over the years to form a collegium comprised of various stakeholders in the appointment, including a failed attempt in 1990, the parliament missed every opportunity. The existing law (Election Commission Act,1991) governing the service conditions of the election commissioners also subtly ignored to legislate on the matter of appointment.
The five-judges bench of the SC has now unanimously resolved this long-awaited issue. However, the ruling did not escape criticism, as government attorneys argued that it constitutes an intrusion into the legislative domain of the parliament. The Attorney General of India in his submission argued that “Judicial intervention in these matters would be at the expense of causing violence to the delicate separation of powers between the Legislature, the Executive and the Judiciary.” Solicitor General appearing for the Union has also submitted the same and said that “There is a system of separation of powers. Now one cannot get into one another’s powers”.
Whether or not the court was in its jurisdiction to create a panel with Chief Justice of India in it (CJI) is again a matter for the apex court and the parliament to decide. For now, the SC has contended that its decision does not amount to intervention into the legislative sphere of the parliament. Justice Joseph at one point during the hearing, replying to Solicitor General on the question of judicial overreach said “CJI is involved in the appointment of CBI director. Where is the threat to democracy there? Our courts have given judgments and that has been accepted by the Executive.” Therefore, so long as the parliament does not pass a law approving, disapproving, or changing the decision, the ruling has become a law.
In this article, I argue that, regardless of whether or not it constitutes judicial overreach, the SC has rendered an upright decision in balancing the separation of powers in the appointment of Election Commissioners.
First, election bodies in democracies entrusted with the responsibility to conduct free and fair election cannot afford to be controlled by any one organ of the state without proper checks and balances. It may cause irreversible damage to the transparency and integrity of the election process and, by extension, to the very foundation of a vibrant and strong democracy. Clearly, the current appointment procedure of the commissioners of ECI by President of India, though mandated by the constitutional provision (Article-324) is highly skewed in favor of the executive. Because the president of India only acts on the aid advice of the council of ministers (Article-74). Additionally, the body is further reliant on the government for financial and personnel management. The judgement ordering the formation of a panel with various stakeholders and suggesting that the body be funded from the Consolidated Fund of India with an independent secretariat is consistent with the democratic principle of separation of powers, not against it, as government counsels argued.
Second, ECI is an independent constitutional institution having qaushi-judicial role. The body makes important decisions during and after an election in which the incumbent political party/parties in the government is more likely to be involved. If the executive has exclusive power to appoint ECI members, as is currently the case, this will create a conflict of interest and erode public confidence in the body. The Supreme Court’s decision to create a panel consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India has eliminated this anomaly and restored the balance of power, which benefits no one.
Third, the constituent assembly debates implicitly and later committees and commissions (Justice Tarkunde Committee-1975, Dinesh Goswami Committee-1990, ARC-II ,255th report of Law Commission-2015 ) explicitly implied that appointment of the of the CEC and ECs be independent involving multiple parties. However, the successive governments in power ignored this, ostensibly in order to gain political favors by appointing commissioners of their choice. The recent judgement merely restated the recommendations of these committees and commissions, which, to any objective observer, does not constitute judicial overreach. It aimed to ensure the transparency and integrity of the election process which in no way amounts to violation of separation of power but rather upholds it.
Fourth, there are already legal precedents where judiciary is involved in the legislation making by way of adjudication. One explicit example is Vishkha Guidelines given in 1997 by supreme court was converted into a law (PoSH Act 2013) with more elaborate provisions. The parliament did not treat the guidelines as an intervention rather used it as a model to convert it into an act. As the line of separation of power between the executive and parliament on legislation making is blurred (the executive necessarily controls the legislative business of the parliament), so is the supreme court’s jurisdiction vis-à-vis parliament on the adjudication of various matters. Any decision that is unfavorable to the government can be characterized as an instance of judicial overreach. The decision of the Supreme Court has set the clock in the right direction, as the parliament ignored since independence to address a crucial issue directly affecting the independence of ECI, resulting in the erosion of free and fair elections, which in turn undermines our democracy. When such foundational democratic values and the democracy itself are at stake, the cry for a judicial overreach by the executive is opportunistic and unfortunate.
It is now up to the parliament to stand up for a thriving democracy by ensuring the independence of its institutions, especially ECI. The supreme court has performed its duty by restoring the skewed balance of power which was in favor of the executive. The issue that whether or not the ruling is a judicial overreach as the explicit mandate was given to the parliament is legally a technical issue. The ruling truly reflects the essence of separation of power principle, a fundamental tenet of democracy. If, unfortunately, tomorrow parliament exercises its constitutional mandate over the appointment of ECI commissioners and nullifies the ruling restoring the existing appointment procedure, it will still violate the essence of democracy and the separation of power principles.
Abdul Moid is a PhD Scholar at Department of Political Science Maulana Azad National Urdu University (MANUU)
