As we embark towards the pent annual democratic exercise of elections, we find ourselves on the cusp of the Indian political ecosystem. In the living memory of most of our fellow Indians, no election has been this unprecedented or this consequential. The incumbent NDA, with Prime Minister Modi at its helm, is flirting with the rather evident possibility of a third consecutive term in Indian Parliament, a feat previously achieved only by the political juggernaut that was Nehru in 1962. With over a billion expected to vote, this is an experiment of huge proportions and consequences.
As a democratic experiment, much of success of elections is owed to the Election Commission of India. On August 10, 2023, Union Law Minister Arjun Ram Meghwal introduced the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in the Rajya Sabha, for setting up a committee of the Prime Minister, Leader of Opposition in the Lok Sabha and a Cabinet Minister nominated by the Prime Minister for selecting the Chief Election Commissioner and Election Commissioners. This lies in departure from the character proposed by the Supreme Court of India, in Anoop Baranwal v/s Union of India, SCC 226 (2023).
It is necessary to comprehend the merits on which the Baranwal Case was admitted, prior to appreciating the nature of the Union Government’s Bill. Anoop Baranwal filed a Public Interest Litigation in January 2015, asseverating that the appointment process for the CEC and ECs hitherto was illicit and in contravention of Article 324 (2). Article 324 (2) provides for the creation of the post of Chief Election Commissioner and provides that such appointment be made by the President, subject to the provisions of any law made in that behalf by Parliament. Such a law has not been framed till date.
The petitioner’s argument sought to question the suppositions of fairness and independence in the CEC’s appointment and exercise, given the prevailing mechanism wherein the CEC was appointed by the President on the advice of the Council of Ministers headed by the Prime Minister, wherein a lacuna of statutory basis was seen. To endeavour towards fairness and equity, in the appointment procedure, the Supreme Court accepted the proposed apparatus put forth by the counsel for the petitioners, Sr Adv Gopal Sankara Narayanan.
The Supreme Court provided for the establishment of a committee made up of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India to provide advice and recommendations to the President regarding the appointment of members to the Election Commission until a separate law was passed on the matter.
Prima facie, I am keen to opine on a tangent akin to the argument put forth by the Learned Attorney General of India, Sr Adv R Venkataraman, who constructed his submissions on the ethos embodied in the doctrine of the separation of powers, submitting that the advancement of the proposed committee would amount to naught, an interpretation but an amendment of Article 243 (2). Submitting that until law was duly framed on the subject by parliament, the power to appoint the CEC was duly vested in the President, who, in the Westminster Model, could only exercise the same on the advice of the Council of Ministers led by the Prime Minister, and that the prevention of the same would be in violation of Article 74 of the Constitution, which provides for the establishment of a Council of Ministers to aid and advise the Prime Minister.
In my opinion, the appointment of the CEC is an administrative decision, not a judicial one. I would like to draw a distinction between the legitimacy of the process and the fathoming of the decision itself. The legitimacy of the process in appointing the CEC must be subject to the scrutiny of and held accountable to the Constitution as interpreted by the Supreme Court. But for the Supreme Court to involve itself in the fathoming of the decision itself, through the participation of the Chief Justice of India in the proposed committee is a transgression into executive and legislative territory. Administration and administrative decision making should not be within the purview of the judiciary. There is a very delicate balance of powers that has been so meticulously carved out by the Constitution of India, upsetting this balance by any of the three pillars, in the general course of events, is a travesty.
As far as the appointment of the CEC is concerned, continues to be at the discretion of Parliament.
However, this is not to say that, by any means, I find the mechanism proposed in the current bill to be sufficient. While the bill in essence provides a degree of perceived equity and fairness in its conduct, pragmatically, it finds no merit. The mere inclusion of the Leader of Opposition is not consequential, in that the Prime Minister and the respective Cabinet Minister, belonging to a singular coalition or faction, will see their will prevail unequivocally. It is indeed veritable that the ability to express dissent, if held, afforded to the LoOp in appointment is a significant development, but it is unlikely to be consequential. It is the same old system with the phantasm of fairness.
The Election Commission of India is one of the few independent constitutional bodies. It caters to both the States and the Union, in their independent electoral liabilities. I believe the unique character of the Rajya Sabha aligns with the unique conception of the EC. The Rajya Sabha affords greater electoral recognition to respective State Governments and offers the spirit of federalism a deeper say in democratic discourse, its arithmetic conception makes it arduous for a single party to enjoy a majority, with even the NDA currently enjoying, 111/245 seats. This character allows it to be more federally representative, yet more resilient and impenetrable to majoritarianism.
Making the appointment of the CEC, contingent on the confirmation of the same by the Rajya Sabha would provide for a greater practical exercise for the opinions of the States, for whom the appointment is equally as significant as the Union, as for the Opposition too, it would prevent the repugnancy of bias and partisanship in appointment with a great degree of sufficiency, safeguarded with the Rajya Sabha’s permanent character, and the CEC’s permanence of responsibility in this democratic experiment, that is India. It would provide fairness and equity in appointment, not merely visibly but intrinsically and in result. It would be truly democratic.
(The author is currently training to be a Barrister at Court of Appeal, UK, and is a third-year student at LSE)
