SC Questions Can Democracy be Safe under Government-appointed Election Commission of India

Manas Dasgupta

NEW DELHI, May 14: The Supreme Court on Thursday virtually disapproved the Narendra Modi government’s method of constituting the Election Commission of India to safeguard the democratic structure of the country observing that free and fair elections depend on a truly independent Election Commission of India.

“What about democracy?” the Supreme Court asked pointing out that the Chief Justice of India is part of the selection committee that picks the CBI director but is not on the panel when the top poll officer is to be picked. The top court was hearing a matter related to the appointment process of the Chief Election Commissioner and Election Commissioners.

“I was wondering. For a CBI director, CJI is there. We can say for maintenance of law and order. Or you can stretch it to rule of law also. But not for maintaining democracy? Not for ensuring pure elections?” Justice Dipankar Datta observed during the hearing.

The court was hearing a batch of petitions challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. The petitioners contended that the Act “defeated” a Constitution Bench judgment in the Anoop Baranwal versus Union of India case, which had constituted a selection panel comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. The 2023 Act, passed within months of the judgment, replaced the Chief Justice with a Cabinet Minister nominated by the Prime Minister.

Nudging the government to address concerns over its dominant role in the appointment of Chief Election Commissioners and Election Commissioners, the court highlighted the absence of even “one absolutely neutral person” on the Prime Minister-chaired selection committee. It questioned the presence of a Cabinet Minister on the panel, observing that such a Minister could not be expected to defy the Prime Minister. The top court also asked whether the presence of the Leader of the Opposition on the committee was merely “ornamental” as appointments could be made without a unanimous vote.

“We don’t say CJI should be there. But why shouldn’t there be an independent member? Why should it be from the ministry? Let us be very clear. Today Prime Minister picks one. And Leader of the Opposition (LoP) picks another one. There is disagreement. The third member will go towards the LoP?” the judge asked.

Responding to the question, Attorney General R Venkataramani said he did not want to take a guess. “May not be in all practicality. I don’t want to second guess that,” the Attorney General said. “Then it is the executive who is controlling everything,” Justice Datta shot back.

The bench observed that decision in such appointments would effectively be passed by a 2:1 majority, with the cabinet minister unlikely to differ from the Prime Minister’s stand. “What troubles us prima facie is why is there an executive veto? After all these precedents was the parliament not aware of these cases? Parliament has the power to frame the laws. But the Supreme Court is the final arbiter. It will have the power to interpret the laws whether you like it or not,” Justice Datta said.

Describing the Anoop Baranwal judgment as a “classic example of judicial restraint and statesmanship,” the court indicated that the 2023 Act handed the power to the Executive to “call the shots” in the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

“Judgments of this court from 1950 are eloquent on the point that the Executive cannot call the shots as far as elections are concerned… Free fair elections are an important part of the basic structure. It can only be accomplished by having an independent Election Commission of India. The Election Commission can only be independent if it has independent Commissioners,” Justice Dipankar Datta, heading a Division Bench, told Attorney-General R. Venkataramani, appearing for the Union government.

Mr Venkataramani said one cannot make a “hugely hypothetical assumption” that the Act would result only in subservient CECs and ECs unless there was an actual lapse on the ground. “Unless you taste the pudding, how can you say the pudding is bad?” Mr Venkataramani asked.

Justice Datta replied that it was not enough for the Election Commission to be independent, and that the poll body should also appear to be independent. The judge asked the top law officer which law he thought occupied the “pride of place” immediately after the Constitution of India.

“After the Constitution, which law occupies the prime place? There are thousands of legislations, which one would you place right next to the Constitution… I would say, the election laws. Would I be wrong? Without democracy, there is nothing,” Justice Datta said.

Mr Venkataramani argued that the Supreme Court cannot become a “second chamber of Parliament.” The petitioners, he said, cannot expect Parliament to enact laws blindly in consonance with Supreme Court judgments.

“Can somebody come to the court and say Parliament disregarded your judgment when it was bound entirely to the word of the court? The court can declare the law while examining the legality of a legislation or a state action. But the court cannot decide what a law should look like and expect Parliament to follow suit by enacting a law faithfully mirroring the court’s vision,” the Attorney-General submitted.

Mr Venkataramani said the court did not declare any law under Article 141 in the Anoop Baranwal judgment. It had merely put in place a stop-gap arrangement for CEC and EC appointments until Parliament enacted a law under Article 324(2). Towards the end of the hearing, the Bench suggested referring the petitions to a Constitution Bench. The petitioners strongly opposed the move, arguing that the pleas involved a “conventional” challenge to the 2023 Act and not a “substantial question of law” warranting reference to a larger Bench under Article 145(3).