Democratizing Elections: Decoding the supreme court judgement on Election Commission

Democracy is not merely a word, but a way of surviving in society. The framers of the Indian Constitution ensured that for India, democracy does not remain a mere paper work, but is reflected in all aspects of life.

Free and fair elections are one of the chief markers of a democratic society. To ensure rule of law' and elections to be free from the influence of the executive, the Constitution has envisaged the formation of the Election Commission of India. This article decodes the jurisprudence surrounding free and fair elections focussing upon the constitutional scheme of Election Commission of India, the lacuna in the scheme and some landmark Supreme Court judgments in this regard. The article delves into the recent judgment of the Supreme Court concerning the appointment of Election Commission of India. The piece begins with highlighting the importance of an independent ECI for a functioning democracy, delves into the judgment of Anoop Baranwal vs. Union of India, 2023 SCC Online SCC 216 and concludes with the concerns left unaddressed and the way forward to secure the ideals of democracy.

Part XV of the Constitution deals with Elections. Article 324 envisages the formation of a body to be known as Election Commission of India (hereinafter referred to as "ECI").

Establishment: According to Article 324 (1), there shall be an Election Commission and it shall be responsible for conduct of elections to the Parliament, State Legislative Assemblies, election to the offices of the President and Vice-President.

Members: According to Article 324(2), the Election Commission shall consist of the Chief Election commissioner and such number of other Election. Commissioners, if any, as the president may from time-to-time fix.

At present, the Election Commission of India is a three-member body, with one Chief Election Commissioner and two Election Commissioners.

Appointment of Members: According to Article 324(2), 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.

Removal of Members: According to Article 324(5), the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.

Independence of ECI: A look at the provisions related to ECI and its members thereof brings out that the Constitution is striving towards an independent body at each step, be it the appointment or the removal of the members. There is no role of the executive which is a radical departure from the scheme of the Government of India Act, 1935 in which the executive was responsible for the conduct of elections. The appointment, removal as well as service conditions of the members of the ECI have to be made by the President which acts as a safeguard.

One point to note is that the functions to be carried out by the President with regard to the ECI as discussed above shall be subject to any law made by the Parliament in this regard.

The Parliament enacted the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 in this regard. Notably, this act does not stipulate anything regarding the appointment of the members of the ECI. This means that when it comes to the appointment of members of the Election Commission, the President is the authority.

In 1995, an ordinance was brought by the President which amended the law under Article 324(2) of the Indian Constitution provided for the appointment of two Election Commissioners in addition to the Chief Election Commissioner whose appointment was already provided in original Article 324. This ordinance was challenged by a writ petition, T.N. India (1995) 4 S.C.C. 611.

The petitioner alleged that the ordinance (Which had become an act by the time the decision came) was brought with mala fide intent to his authority as he was holding the then Centra violating Model Code of Conduct during the bye-elections.

The apex Court, while upholding the constitutionality of two Election Commissioner observed that-

In 2005, the Ministry of Human Resource Development constituted a committee under Shri J.M. Lyngdoh (former Chief Election Commissioner of India) to examine and recommend upon certain aspects of student body and student union election conducted in universities, colleges and other institutes of higher education. The committee in 2006 released its report which forms the foundation of student union elections in India. In these recommendations, the Lyngdoh committee has provided for the appointment of independent observers for the conduct of elections.

The discussion till here has made it crystal. clear that an independent election commission is indispensable for the functioning of a democracy. This is time and again even the judiciary has stepped in to ensure the same. the constant effort to ensure the independence of the ECI, be it by makers, the judiciary or the legislative, there are many concerns which this desirable independence and are yet unaddressed.

One of these concerns is regarding the appointment of the members of the ECI.

According to Article 324(2), the appointment of the members of the ECI shall be done by the President subject to any law made by the Parliament in this regard. Thus, in the absence of any legislation, it is the President who is solely authorized for the appointment of ECI members.

The core of the concern arises on a conjoint reading of Article 324(2) and Article 74, according to which the President of India is bound by the aid and advice of the Council of Ministers. It means that the President would be bound to appoint the Election Commissioner solely on the advice of the Executive, which, in a sense, may be understood as on the advice of the Prime Minister. Thus, the present system of the appointment of CECs fails the very essence of democracy and independence of the election commission.

To address the concern discussed above, it has long been demanded to constitute a selection committee for the appointment of the Election Commissioners.

For the first time, this demand was raised in 1990 when the Dinesh Goswami Committee suggested the need for a selection committee or a panel to appoint the CEC. Consequent to this, a Constitutional Amendment Bill was introduced in the Parliament, which, however could not be passed and was later withdrawn. 

This report while highlighting the critical role of the Election Commission in the working of democracy stipulated the formation of a collegium for the appointment of Election Commissioners.

Under the Chairmanship of Justice AP Shah, this report also recommended making the appointment process of the Election Commissioners and the CEC consultative.

Bench: Honourable Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar

In 2015, a writ petition under Article 32 was filed in the Supreme Court of India highlighting the requirement of a full-proof and better system of appointment of members of the Election commission. The division bench of the Supreme court, considering the matter to be of constitutional importance, referred it to the Constitutional bench.

Issue: The main issue in this petition was whether there is a legal vacuum in Article 324? Should the Court interfere to fill this vacuum if there is one?

Judgment: The Court decoded the rationale behind Article 324 and highlighted the importance of independence of the Election Commission of India. Reliance was placed on Constitutional Assembly Debates, various Reports, earlier judgments of the Supreme Court and practice in other countries.

As part of final relief, the Court held that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief justice of India.

The Court held that this system will continue to hold good till a law is made by the Parliament.

On 10 August, 2023, The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Bill was, introduced in the Rajya Sabha which provides for the appointment process 3-1Id conditions of services for the CEC and ECs. It repeals the earlier 1991 act. It finally received the assent of the President and has become an act.

The Commission will be appointed by the President, upon the recommendation Selection Committee. The Selection Committee will comprise the Prime Minister, Cabinet Minister, and Leader of Opposition in Lok Sabha (or leader of the single largest opposition party). Importantly, deviating from the judgment of the Supreme Court in Anoop Baranwal case, the act drops the Chief Justice of India from the selection committee.

• The selection committee under the Act is dominated by members of the executive. This composition poses a significant threat that the selection of ECI members may not be unbiased or impartial.

• The decisions of the selection committee shall be valid even if there is a vacancy. Such a provision paves a way for the monopoly of the executive in the selection procedure.

• Under the repealed 1991 act, the salary of the CEC and EC s was equivalent to a Supreme Court judge which in turn is fixed by the Parliament. In the 2023 act, salary and conditions of service of the CEC and ECs will be equivalent to that of Cabinet Secretary which in turn is decided by the Central Government. This may lead to government influence over the ECI.

The crux of democracy lies in the institutional autonomy and separation of power between the organs. The concerns raised in the recently enacted act as discussed above are serious in nature and contain the possibility of jeopardizing the impartiality of elections.

To preserve the integrity and impartiality of India s electoral process and uphold the principles of democracy, it is quintessential to address the concerns of the 2023 Act. A balanced and inclusive approach to the appointment process, with due consideration to the recommendations of various expert committees and judicial pronouncements, is essential. The first step towards this may be to constitute a selection committee including diverse stakeholders. Conclusively, dedicated efforts are required to be made to fortify the independence of the Election Commission of India, thereby reaffirming the nations commitment to democratic principles and the rule of law.