Making Sense of the Election Commissioners’ Appointment Case Before the Supreme Court

Last week, a Constitution Bench of the Supreme Court led by Justice K.M. Joseph reserved its judgment in Anoop Baranwal versus Union of India, arising from a PIL which sought a direction to the Union Government to constitute an independent mechanism of appointing Election Commission of India members. The Leaflet breaks down the issues in this case.

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How are appointments to the ECI made?

The Constitution does not lay down any procedure for selection of candidates or qualification criteria for members of the Election Commission of India (‘ECI’). Article 324(2) only stipulates that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President “subject to the provisions of any law made in that behalf by Parliament”.

The Parliament enacted the Election Commission (Conditions Of Service Of Election Commissioners And Transaction Of Business) Act (‘EC Act’) in 1991, which deals with the salary, term of office, pension and other perks for Election Commissioners, but does not prescribe a selection procedure for their appointment. In the absence of statutory provisions, the responsibility of appointing Election Commissioners has rested solely with the executive since the commencement of the Constitution 72 years ago.

A note placed before the Supreme Court last week states that “as per convention”, a list of serving/retired officers of the rank of Secretary/Chief Secretaries to the Union Government is prepared by the Union Ministry of Law and Justice based on the database maintained by the Department of Personnel And Training (‘DoPT’). A panel of names from this list is first sent to the Prime Minister for approval and then the President for official appointment. “The process adopted is highly confidential”, the note says.

The Union Government defended the practice of only appointing bureaucrats as ECI members, stating that they are suited for the job since they gather the experience of overseeing elections early in their careers as District Magistrates.

On the criteria for selecting candidates, the Attorney General for India (‘AGI’), R. Venkataramani said that the Union Government considers the seniority of potential candidates and the length of tenure they may serve once appointed, among other things which the AGI did not specify.

As it was brought to the notice of the court that a new Election Commissioner had been appointed just after the court started hearing the ECI appointments matter on November 17, the court ordered that the original file of appointment of Election Commissioner A.K. Goel be placed before the court. Goel’s file showed that he took voluntary retirement from his position as Secretary of the Union Ministry of Heavy Industries on November 18, and by November 19, a gazette notification had been issued appointing him as an Election Commissioner. The vacancy that Goel filled had been lying vacant since May 15 this year.

What is the Supreme Court being asked to adjudicate on?

The present case originated from a public interest litigation (‘PIL’) filed by advocate Anoop Baranwal in 2015, to declare the practice of appointment of ECI members solely by the executive as being violative of Article 324(2), which imposes an expectation on the Parliament to make a law in that regard; and seeking a direction to the Union Government to implement an independent and transparent system for the appointment of ECI members.

In October 2018, the Supreme referred the PIL to a five-judge Constitution bench to interpret Article 324. Later, similar petitions by the non-government organisation Association for Democratic Reforms (‘ADR’), and lawyer and politician Ashwini Kumar Upadhyaya were tagged with the original PIL of 2015.

The petitioners contended that the independence of the ECI is vital for ensuring the principle of free and fair elections, which is an essential postulate of democracy and which in turn is a part of the basic structure of the Constitution. It was further argued that since the ECI performs a quasi-judicial function of conducting elections and resolving disputes among parties, the appointment of the Chief Election Commissioner and Election Commissioners by the executive alone may allow the biases of the ruling party to reflect in appointments.

The petitioners also asked the court to take notice of at least three reports by government-appointed commissions that have recommended for the constitution of a collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha for the appointment of ECI members.

The Supreme Court questioned the government for ignoring the mandate of Article 324(2) and its omission to introduce a law in the Parliament to prescribe the procedure of appointment for ECI members.

The Union Government, pleading for a strict separation of powers, contended that the question on whether there is a legislative vacuum that needs to be filled or not is a matter of parliamentary debate, and merely because the parliament has been given power to make a law in certain regard does not imply that a law has to be mandatorily passed. The AGI argued that the court should only choose to adjudicate on this debate if it is shown by the petitioners that there has been a complete aberration of the ECI’s independence.

Do ECI members have security of tenure either under the Constitution or the EC Act?

The Chief Election Commissioner and the two other Election Commissioners stand at an equal footing, in terms of disposal of business of the ECI. As per the EC Act, all disputes of opinion amongst the Election Commisioners shall be resolved according to the opinion of the majority. All three ECI members also draw the same salary and enjoy the same perks.

Goel’s file showed that he took voluntary retirement from his position as Secretary of the Union Ministry of Heavy Industries on November 18, and by November 19, a gazette notification had been issued appointing him as an Election Commissioner. The vacancy that Goel filled had been lying vacant since May 15 this year.

However, in regard to security of tenure, the Chief Election Commissioner and the two other Election Commissioners are governed by different rules. While the Chief Election Commissioner enjoys the same security against removal as a judge of the Supreme Court (that is, they can only be removed through resolution passed by a majority of Lok Sabha and Rajya Sabha members) and the conditions of service of the Chief Election Commissioner cannot be varied to their disadvantage after their appointment, the two Election Commissioners do not enjoy such security.

The Election Commissioner can be removed from office on the recommendation of the Chief Election Commissioner to the President, as laid down under Article 324(5) of the Constitution. However, the recommendation for removal “must be based on intelligible, and cogent considerations which would have relation to the efficient functioning of the Election Commission”, held the Supreme Court in T.N. Seshan versus Union of India (1995).This unequal security of tenure was first affirmed by the Supreme Court in S.S. Dhanoa versus Union of India (1991).

The Union Government also disclosed in court that it follows a convention of appointing only those persons as the Chief Election Commissioner who have previously been appointed as an Election Commissioner. During the proceedings last week, at least three judges of the Constitution bench questioned the basis for this convention, in view of the fact that neither the Constitution nor the EC Act puts any bar as to qualification.

Since the two Election Commissioners don’t have the same security of tenure as the Chief Election Commissioner, and only an Election Commissioner can become a Chief Election Commissioner (according to convention), in theory, this gives the executive the power to test out the pliability of an Election Commissioner prior to taking a decision on his promotion.

While Section 4 of the EC Act provides that an ECI member “shall” have a term of six years from the date of assuming office, it may be cut short if the ECI member turns 65 years of age before the end of their tenure, as per the first proviso of this section.

The bench remarked that the exception laid down in section 4 has been made the norm by appointing only those persons as an Election Commissioner who are either retired or on the verge of retirement.

During the proceedings at the Supreme Court, Justice K.M. Joseph circulated printouts sourced from Wikipedia listing the length of term served by each Chief Election Commissioner, which led to the bench noting, “There has been a disturbing trend after 2004 of picking people who they know will not be able to complete six years of tenure…The so called independence that you pay lip service to is completely destroyed by having this kind of term”.

It was argued that since the ECI performs a quasi-judicial function of conducting elections and resolving disputes among parties, the appointment of the Chief Election Commissioner and Election Commissioners by the executive alone may allow the biases of the ruling party to reflect in appointments.

The Union Government responded by stating that the whole term of a person as a member of the ECI must be taken into account, instead of only considering a person’s term as the Chief Election Commissioner. Looking at it this way would show that most previous Chief Election Commissioners have had a tenure in the range of four to six years, it claimed.

This argument may not be fully in line with the provisions of the Constitution, which consider appointment as an Election Commissioner separate from that of the Chief Election Commissioner. Accordingly, a person may serve two consecutive terms of six years each.

If the Supreme Court constitutes a collegium for ECI appointments, should the Chief Justice of India be its member?

During the course of hearing, the Constitution bench suggested that the “least intrusive” system would be one that has the Chief Justice of India (‘CJI’) as part of the appointment committee. “We feel that his very presence will send a message that you can’t be playing games.”

In the last four decades, three government-appointed committees have recommended that members of the ECI be selected on the advice of a committee constituted by the CJI, the Lok Sabha’s Leader of Opposition and the Prime Minister.

The Justice V.M. Tarkunde-led Committee on election expenses in 1975, the Committee on Electoral Reforms led by then Union Law Minister Dinesh Goswami in 1990, and the Law Commission of India in its 255th report in 2015, made this recommendation.

The Second Administrative Reforms Commission (2007) went a step further and made additional suggestions to include the Union Minister of Law And Justice and the Deputy Chairman of Rajya Sabha also in the committee.

The AGI has argued in the court that the Union Government decided to ignore the recommendations of these reports since they aren’t “evaluative enough” and do not deal with “substantive aspects” of appointments. He further contended that the court must not accept requests for committee reports to be ordered to be implemented, since it may set a precedent for future petitions.

The Constitution considers appointment as an Election Commissioner separate from that of the Chief Election Commissioner. Accordingly, a person may serve two consecutive terms of six years each.

The Supreme Court’s judgment in Prakash Singh & Ors versus Union of India (2006) was cited by the petitioners as a reminder that the Supreme Court had then taken note of various reports suggesting police reforms and based its decision on them. In that case, the Supreme Court had delivered seven directives to the Union and State Governments to make the police force more accountable and free from political influence.

Nevertheless, the debate on whether the CJI himself should be part of the collegium to appoint ECI members has no obvious answers. While the stature of CJI’s office might prevent prima facie irregularities and subversion of procedure, it may not be able to ensure the occurrence of detailed deliberations that are necessary for selecting a member of the ECI. It is also uncertain whether the CJI, who is already burdened with administrative and judicial tasks at the Supreme Court, should take on additional duties.

Is the judiciary violating the doctrine of separation of powers by adjudicating on the ECI’s appointment process?

While the bench clarified that it wasn’t inclined to issue a mandamus to the government to enact a law under Article 324(2), it did not shy away from expressing its concerns regarding the lack of statutory provisions on the appointment of ECI members. “The silence of the Constitution is being exploited”, the court said.

ADR’s counsel, Prashant Bhushan cited the Supreme Court’s judgment in Vineet Narain versus Union of India (1997), which gave detailed directions on the process of appointment of the Chief Vigilance Commissioner and the Director of the Central Bureau of Investigation to ensure their independence. The present case is similar to that of Vineet Narain, he claimed.

The Supreme Court’s judgment in Vishaka versus State of Rajasthan (1997), which gave guidelines for dealing with sexual harassment complaints, was also cited to argue that the Supreme Court has previously intervened to fill the void created by a lack of statutory provisions.

While the stature of CJI’s office might prevent prima facie irregularities and subversion of procedure, it may not be able to ensure the occurrence of detailed deliberations that are necessary for selecting a member of the ECI. It is also uncertain whether the CJI, who is already burdened with administrative and judicial tasks at the Supreme Court, should take on additional duties.

Meanwhile, the Union Government argued that any alteration from the current appointments process can only be executed by the Parliament by a Constitutional amendment; hence, an attempt by the court to set down the procedure of appointments would entail breaching the doctrine of separation of powers.

What lies ahead?

It is possible that the Supreme Court may decide to refrain from exercising its powers under Article 32 (power to issue writs) of the Constitution, and instead deliver its decision under Article 142 (passing an order necessary for doing complete justice) of the Constitution.

Nevertheless, it can be reasonably expected that the Constitution bench would not dismiss the current petitions without directing at least some remedial course of action. The bench may lay down an altered procedure of appointments, while also stating that it may only be applicable till the Parliament enacts a law in this regard.

Tushar Kohli is a journalist based in Delhi and Mohali.