The Chief Election Commissioner and other Election Commissioners shall be appointed by a committee comprising the Prime Minister, Leader of Opposition, and Chief Justice of India — the Supreme Court has laid down this new law through a unanimous judgement. The old method of appointment under Article 324 has been done away with. Under the now-scrapped method, the Election Commissioners including the CEC were appointed on the aid and advice of the council of ministers by the President.
The Supreme Court concluded that there was a void in the Constitution. The ‘void’ is the lack of any statutory mechanism to appoint Election Commissioners. It is called a void because the framers of the Constitution had never intended such crucial appointments should exclusively and solely lie with the executive, according to the constitution bench of the apex court. The judges argue that appointment on the aid and advice of the council of ministers was a ‘mere transient or stopgap arrangement’. The court believed it must step in because successive governments have failed in their duty to implement numerous expert committee reports and law commission recommendations. Such a step has been taken to protect the ethos of ‘democracy and rule of law’, says the Supreme Court of India. The court highlights the importance of the ‘separation of powers’ to protect the ‘rule of law’.
The government had vociferously objected to such interference, citing the absence of any trigger and terming such action as judicial overreach.
When interpreting a particular statute or reconciling conflicting provisions of law, the courts often take recourse to parliamentary debates, constituent assembly debates and material that can elucidate the vision of the founding fathers. But to scrap an existing convention or established process of appointment of Election Commissioners solely because it contradicts with the vision of the founding fathers is clearly an overreach. By the same logic, reservation was supposed to be a stopgap arrangement and many provisions under the Constitution were envisioned to be temporary. But that does not lay the ground for the courts to don the hat of legislators. It’s a task best left to Parliament.
If the court had merely called the present process of appointment of ECs unconstitutional, then it was a different matter. The court merely termed the existing method as a transient one and then went on to lay down the procedure for the appointment of the CEC and ECs. Interestingly, the SC has said that the process of appointment through a committee of PM, CJI and LoP shall continue till Parliament frames a law on this issue. While Parliament is free to bring in a law on this matter, the broad paradigms are already set by the court through this judgement. After this judgement, any law or statute framed cannot have the power of appointment tilted in the favour of the executive. If the court cannot give mandamus to Parliament to frame laws, it can certainly not draft laws on its behalf.
When the Supreme Court laid down the ‘basic structure theory’ in the historic case of Kesavananda Bharati, there was a political context to that judicial reaction. The repeated attacks and a series of confrontations with the Indira Gandhi government had led the court to lay down the theory to protect the intrinsic values of the Indian constitution. When the Supreme Court laid down the method of appointment of judges (collegium) in the second and third judges’ case, jurisprudence was emerging from the painful lessons of the Emergency and the need to keep the judiciary free from political interference. But the present judgement has no such political trigger that can explicate such drastic intervention, as argued by the Attorney General before the court.
The judgement is written with an impassioned spirit of reform of key electoral appointments. A reform which concerns the heart and soul of any democracy-free and fair elections. No right-thinking citizen can disagree with that spirit to protect the constitutional values that the judges have elaborated upon. But the lines are clearly drawn by the very same Constitution that the courts ought to protect. It is not the job of the courts to legislate, however grave a lacuna might be.
To conclude, the process laid down by the Supreme Court for the appointment of Election Commissioners is the same which is followed for the appointment of the CBI director. If this process had guaranteed protection from political interference, the CBI would not have been called a ‘caged parrot’ by the apex court itself. And the opposition would not cry of a witch-hunt with every CBI case against its leaders. The court has replaced a ‘transient method’ with a proven faulty one which does not insulate from political interference.
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