(Im) Possibility of collegium with PM, CJI and Leader of Opposition

Hyderabad: The Supreme Court’s direction of insulating the appointment of Chief Election Commissioner and ECs from the Executive’s inference is lauded by many.

There are two important prayers: Ashwani Kumar Upadhyay applied (in Writ Petition (Civil) No 1043 of 2017), a Public Interest Litigation, to direct the Central Government to take appropriate steps to provide the same and similar protection to both the Election Commissioners so that they shall not be removed from their office except in like manner and on the like grounds as the Chief Election Commissioner.

Secondly, sought directions to the Central Government to take appropriate steps to provide an independent secretariat to the Election Commission of India and declare its expenditure as charged on the consolidated funds of India on the lines of the Lok Sabha/Rajya Sabha secretariat.

Third was the directions to the Central Government to take appropriate steps to confer rule-making authority on the Election Commission of India on the lines of the rule-making authority vested in the Supreme Court of India to empower it to make election-related rules and code of conduct. Finally, systems to strengthen the ECI.

The Association for Democratic Reforms sought (in Writ Petition (Civil) No 569 of 2021), wanted to issue directions declaring the practice of appointment of Chief Election Commissioner and Election Commissioner solely by the executive as being violative of Articles 324(2) and 14 of the Constitution of India.

The ADR also asked to implement an independent system for the appointment of members of the Election Commission on the lines of the recommendation of the Law Commission in its 255th report of March 2015; Second Administrative Reform Commission in its fourth report of January 2007; by the Dr Dinesh Goswami Committee in its report of May 1990; and by the Justice Tarkunde Committee in its report of 1975.

The director is the heart and mind of the judgement. The bench of the Supreme Court in Anoop Baranwal v. Union of India, WP(C) No 104/2015 on March 2, 2023, directed that, until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect:

“We declare that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member committee comprising the Prime Minister, the Leader of the Opposition of the Lok Sabha and in case no leader of Opposition is available, the leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India. Another significant direction is that it is desirable that the grounds for removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the grounds as a Judge of the Supreme Court subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India.

Ensuring the independence of ECI, the bench explained, “Article 324(5) of the Constitution is intended to ensure the independence of the Election Commission free from external political interference and, thus, expressly provides that the removal of the Chief Election Commission from office shall be in like manner as on the grounds as of a Judge of the Supreme Court. Nevertheless, a similar procedure has not been provided for other Election Commissioners under the second proviso to Article 324(5) of the Constitution. The other conditions of the service of Chief Election Commissioner/other Election Commissioners have been protected by the Legislature by the Act 1991.”

The Bench further said, “… keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold free and fair elections which is a sine qua non for upholding the democracy as enshrined in our Constitution, it becomes imperative to shield the appointment of Election Commissioners and be insulated from executive interference. It is the need of the hour and advisable.” In addition, the Bench directed “to extend the protection available to the Chief Election Commissioner under the first proviso to Article 324(5) to other Election Commissioners as well until any law is being framed by the Parliament.”

It will give very high power. Before understanding, the original power given through Article 324(2), this part of the Indian Constitution should be studied. The Election Commission shall consist of the Chief Election Commissioner and a such number of other Election Commissioners, if any, as the President may from time to time fix the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.” The entire dynamics of this appointment power will depend upon the interpretation of the ‘executive’ and implementation of the order.

Earlier before this SC judgement, the senior Election Commissioner would be elevated as Chief Election Commissioner, automatically, like a senior SC judge is elevated as the Chief Justice of India, not by ‘election.’ But the bench of the Supreme Court says that CJI will be one of the members in selecting (not elected) the Election Commissioner or their Chief Election Commissioner.

It is true that the Executive generally claim that it has such power through judicial writs, and hence which looks like a ‘law’ made by Parliament. The political leaders can use that power to blame it for overriding the Executive wing. Under the Constitution of India, the Supreme Court has assumed the power to issue directions in respect of the area which should fall under the Executive. They say it is beyond the power conferred on the Judiciary by the Constitution.

Before the SC judgment, the only Executive, i.e., the Government would simply select or appoint Election Commission members without any consulting any agencies. Thus, in effect, practically the PM will appoint EC only. This order of the SC will be now should compelled to seek ‘consult’ from the Legislative and Judiciary too. It is not clear whether the Prime Minister should head a body to appoint judges.

The Parliament may discuss the Bill if prepared by the Executive, which may have to decide the contents of such Bill. What should be in the Collegium system like National Judicial Appointments Commission Act? It all depends on the PM and his ministers, the proposed Bill, and the Parliament finally.

Three Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar recommended reforms in the process of appointment ofmembers of the Election Commission of India, saying, “Any process that seeks to improve the election process before this Court must be considered.”

The bench also said, “A large section of the media has abdicated its role and become partisan.” The SC said that democracy can succeed only if all stakeholders work on it to maintain the purity of the election process, so as to reflect the will of the people. However, it expressed regret at the “unrelenting abuse” of the electoral process over a period of time. It also commented on the impartiality of the media in the present times. While some have rightly informed about the several political parties that came into power, none of them framed a law/process for the appointment of the Election Commissioners. It can be explained that the SC verdict is temporary in nature and will hold good till Parliament makes a law on this issue.

Clear Confusion or Fusion?

It is not a simple solution. The Judge of the Supreme Court in Anoop Baranwal v Union of India, WP(C) No. 104/2015 on March 2, 2023, decided in the fusion of the Executive (PM), the Opposition (part of Legislation, Lok Sabha), and the Judiciary (CJI). This is not easy. First, the PM and his Cabinet should prepare a viable Bill with a correct acceptable draft and the MPs should take up the discussion in a positive spirit. Is it possible? Can the Election Commission choose to remain aloof (not friendly or willing to take part in things) from all forms of subjugation by the Executive?

However, the effect of this order will be understood or realised only when the first vacancy raises in the EC on February 14 when Anup Chandra Pandey retires at the age of 65 years. Perhaps by 2024, the Lok Sabha elections will be scheduled by Election Commission. Justice KM Joseph unanimously agreed to constitute a “collegium” comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition to select Election Commissioners, which felt the need to ensure that the persons appointed are “above politics.”

Is it possible to select ECs who are ‘above politics?’ Will this suggested practice be enforced until a law in this regard is made by the Parliament? The bench had questioned the Union Government for clearing the appointment of Arun Goel as one of the Election Commissioners at “lightning speed.”

That means the Constitutional Amendment should be finalised and completed by February 14, 2024. Is it possible?