ON JUNE 15, 1949, the Constituent Assembly witnessed an intense debate on the issue of appointment of the chief election commissioner and the election commissioners. Dr B.R. Ambedkar, who headed the drafting committee of the Constitution, had moved an amendment to Article 289, which dealt with the issue. And there was much consternation among the members about giving the executive the sole say in the appointments.
Article 289 provided for the president appointing the chief election commissioner and the election commissioners. Many voices in the Assembly raised concern over the formulation, noting that the ‘president’, in effect, meant the prime minister and the council of ministers. They said allowing the government a unilateral say in the appointments would hamper the Election Commission’s independence. It was suggested that Parliament should be authorised to make a provision for these matters by law.
The following day, Ambedkar, said he was prepared to make certain amendments. That is how Article 324 came into being, and it read: “The appointment of the chief election commissioner and other election commissioners shall, subject to the provisions of any law made on this behalf by Parliament, be made by the president.”
Seventy-three years later, these debates became the basis for the Supreme Court’s landmark judgment on the procedure for appointing the chief election commissioner and the election commissioners. Also, the very fact that successive governments had, over the past seven decades, failed to bring a law in the matter was cited as a reason for the court’s intervention.
A five-judge bench of Justices K.M. Joseph, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar and Ajay Rastogi, in a unanimous judgment, said a golden thread ran through the proceedings of the Constituent Assembly, which made it clear that the members felt that elections must be conducted by an independent commission, and that to ensure the independence of the poll body, it was important that the appointments to the Election Commission were not made by the executive.
The court said the appointment of the chief election commissioner and the election commissioners should be made by the president on the advice of a committee consisting of the prime minister, the leader of the opposition in the Lok Sabha, (in case no leader of opposition is available, the leader of the largest opposition party in the Lok Sabha) and the chief justice of India. The court also made it clear that this would be subject to any law to be made by Parliament.
The court order assumes immense significance against the contemporary political backdrop, dominated by increasing questions about the credibility and impartiality of the Election Commission. “A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy,” said the order.
“I have always maintained that a system wherein a collective body would appoint the chief election commissioner and the election commissioners is always better than the procedure followed thus far,” said former CEC T.S. Krishnamurthy. “It is essential to maintain the credibility of the institution. The system prescribed by the court can be given some time to see if it works properly or not.”
Opposition parties, which have questioned the impartiality of the Election Commission in recent times, welcomed the judgment. Congress leader Abhishek Manu Singhvi said the judgment was a powerful indictment of the functioning of the Commission over the past eight years. “What is interesting is how the government of the day vigorously opposed this decision. In the hearings, the government argued vehemently against its loss of control over this process,” he said.
The judgment has come at a time when the relations between the judiciary and the government have become increasingly tense. The court’s hearings in the matter were characterised by a lively back and forth between the bench and the government lawyers on whether a legal vacuum existed and whether it would not amount to judicial overreach for the court to enter what the government described was a purely legislative territory. The government’s lawyers had staunchly opposed the petitions, arguing that the present system was working well, which conveyed the government’s lack of intent to bring in a law or reform the procedure. Around the same time, another bench of the apex court had some harsh things to say to the law officers over the delay in the appointment of judges to the higher courts.
But not everyone is convinced about the new order. “The chief justice of India already has immense judicial and administrative work to handle. And where is the guarantee that the new system will help?” asked Govind Mathur, former chief justice of the Allahabad High Court. “In Pakistan, the judiciary has always had a say in the appointments to the Election Commission. But elections there have never been fair.”
The court did address the question of judicial overreach at great length, noting in its order that although the judiciary could not usurp a purely legislative function, in the event of “veritable gaps or a vacuum, the court may not shy away from what essentially would be part of its judicial function”.
The government’s reaction to the order will be keenly watched, given its tense relationship with the judiciary. Union Law Minister Kiren Rijiju has been relentless in his criticism of the judiciary, especially with regard to the procedure adopted for the appointment of judges. The comments made by Vice President Jagdeep Dhankhar questioning the iconic Kesavananda Bharati judgment which laid down the doctrine of the basic structure of the Constitution has also added fuel to the fire.
There is speculation whether the government will attempt to clinch the matter and reaffirm the role of the executive and the legislature by bringing a law with regard to the appointment of the chief election commissioner and the election commissioners. The first vacancy after the judgment will arise on February 16, 2024, just before the Lok Sabha elections, when Election Commissioner Anup Chandra Pandey would retire. The method prescribed by the apex court as also the intent of the government to follow it will be put to test in case no law is enacted by then. An option before the government would be to carry on with a two-member Commission comprising the chief election commissioner and one election commissioner since there is no norm dictating that there should be two election commissioners.
Rijiju, while not mentioning the judgment, spoke about the issue of judicial overreach following the court order. At the Commonwealth Law Conference held earlier this month in Panaji, he said: “One of the important success stories of democracy is a strong constitutional permission which holds for a clear separation of power for the judiciary, executive and legislature. If any wing tries to encroach on the territory of others, it must be fiercely resisted because it poses a great danger to democracy itself.”
There is also speculation that the ruling dispensation, which has been increasingly vocal in its criticism of judicial appointments through the collegium system, could up the ante further and seek a role for the executive in the appointment of judges, even attempting a redux of the National Judicial Appointments Commission.
“For the court to get into matters that lie in the realm of the executive would result in its own independence getting affected,” said Mathur. “There can be a blowback from the executive. The less it gets into the domain of the executive, the better it would be for the judiciary.”