Who is Crossing the Lakshman Rekha?

The Supreme Court has not taken appointments in its hands, but has only directed that these important appointments should be made on the recommendations of a high powered committee.

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The Union Law Minister is once again accusing the Supreme Court of crossing what he terms as the “Lakshman Rekha guiding various institutions including the executive and the judiciary” and wonders that “if judges become part of administrative appointments and sit over every appointment, who would carry out judicial work?” He has even gone to the extent of using derogatory expressions such as “anti-India gang” while referring to some retired judges, threatening that they will have to pay a price. Such expressions coming at a public event from a Union Minister against the judges of Constitutional Courts is unheard of, and totally condemnable.

The context of his outburst, amongst others, is the recent judgement of a Constitution bench of the Supreme Court from March 2, directing that the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) would have to be appointed on the basis of the recommendations made by a committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and Chief Justice of India (CJI), to maintain the credibility of the Election Commission. It is important to note that the Supreme Court has not taken appointments in its hands, but has only directed that these important appointments should be made on the recommendations of a high powered committee. The CJI is only one of the three members of the committee, and will not have any veto power, so there won’t be a question of anyone sitting over any appointment.

What does the EC appointment judgment actually say?

I am reproducing hereunder the relevant parts of the majority judgement authored by Justice K.M. Joseph for the benefit of readers so that they may themselves judge whether the Law Minister’s accusation is correct:

“The Writ Petitions are partly allowed and they are disposed of as follows:

I. We declare 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. This norm will continue to hold good till a law is made by Parliament.

II. As regards the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India is concerned, the Court makes a fervent appeal that the Union of India/Parliament may consider bringing in the necessary changes so that the Election Commission of India becomes truly independent.“

Earlier in the judgment, it is observed:

“…it is for Parliament acting in the constituent capacity to consider whether it would be advisable to extend the protection [akin to that of the CEC] to the Election Commissioners so as to safeguard and ensure the independence of the Election Commissioners as well. This goes also as regards variation of service conditions [of ECs] after appointment.“

The Supreme Court has acted in the interim only in order to fill the legislative vacuum, and left the final word to the Parliament on the issue of appointments of CEC and EC as well as on other issues essential for the existence of a truly independent Election Commission.

Justice Ajay Rastogi, who wrote a concurring judgement, stated the following reason for the Supreme Court to act in this matter in his judgement:

“That Article 324(2) refers to the appointment of the Chief Election Commissioner and other Election Commissioners which shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. It contemplates that the Parliament makes a law a laying down the procedure of selection for appointment of the Chief Election Commissioner and other Election Commissioners, but such law has not been made by the Parliament, even after 73 years since the adoption of the Constitution. In order to fill the legislative vacuum, i.e. the absence of any law made by the Parliament for the appointment of members of the Election Commission and in the light of the views expressed in various reports of the Law Commission, Election Commission, etc., this Court is of the considered view that the instant case thus aptly calls for the exercise of the power of this Court under Article 142 to lay down guidelines to govern the process of selection (and removal) of Chief Election Commissioner and Election Commissioners, till the Legislature steps in.“

So, the reason for the Supreme Court to act in this matter is very clear, one can evaluate the matter without being swayed by mere political statements. The Supreme Court has acted in the interim only in order to fill the legislative vacuum, and left the final word to the Parliament on the issue of appointments of CEC and EC as well as on other issues essential for the existence of a truly independent Election Commission.

It would also be pertinent to reproduce the following observations made by Supreme Court in its 1997 judgement in Vineet Narain versus Union of India regarding appointments of the Central Vigilance Commissioner, the Central Bureau of Investigation Director and the Enforcement Directorate Director:

“…it is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.“

Election Commissioners are answerable to the nation. The people of the country look forward to them as defenders of democracy. Such persons who are weak-kneed before the powers that be cannot be appointed as Election Commissioners. An obliged person, or a person who feels indebted to the one who appointed him, fails the nation and should have no role to play in the conduct of elections, forming the very foundation of the democracy.

The Union government has been persistently delaying judicial appointments, even after unanimous reiteration of its recommendations by the Supreme Court Collegium, against the mandate of law. 

The court has observed that holding the scales evenly even in the stormiest of times, and not being servile to the powerful, but coming to the rescue of the weak and the wronged, who are otherwise in the right, would qualify as true independence. It is important that the appointment must not be overshadowed by even a perception that a yes-man will decide the fate of democracy and all that it promises. This is the justification behind this landmark judgement rendered by the Supreme Court.

It is obvious that the Supreme Court has not crossed any Lakshman Rekha while performing its function of judicial review assigned to it under the Constitution; a function that has been recognised as part of the basic structure of the Constitution by the Supreme Court in the much celebrated Kesavananda Bharati judgement of 1973.

Who is actually crossing the Lakshman Rekha?

After the striking down of the constitutional amendment and Act pertaining to the establishment of a National Judicial Appointment Commission by the Supreme Court in 2015, the Union Government has been persistently delaying judicial appointments, even after unanimous reiteration of its recommendations by the Supreme Court Collegium, against the mandate of law.

On April 20, 2021, the Supreme Court took suo motu cognisance of this fact in a case from Odisha, and directed that judicial appointments shall be made by the President within three to four weeks of the unanimous reiteration by the Supreme Court Collegium. Even this order is not being honoured by the Union government, and a contempt proceeding has also been initiated by the Supreme Court, but the stalemate persists even as the Union Law Minister makes public statements against the collegium system.

There is a perceptible deadlock between the judiciary and the executive. Resultantly, some high courts are working at less than half the bench strength, adding to the miseries of the common man.

Despite six judgements rendered by the Supreme Court since its R. Gandhi judgement rendered in 2010 on reforms in the matter of tribunals discharging judicial functions, the Union Government has persistently avoided their implementation in letter and spirit. Every time the Supreme Court strikes down a provision operating against independence of judiciary, the Union Government brings out a new provision in order to override the effect of the judgements in utter disregard to the principle against legislative overruling, making a mockery of the highest court of the land.

The legislature, it is well settled, cannot simply override the judgment of a court. If the legislature were permitted to do so, it would travel beyond the boundaries of constitutional entrustment. While the doctrine of separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or invalid, the law-making body is entitled to enact a law which remedies the defects which have been pointed out by the court. Enactment of a law which takes away the basis of the judgment (as opposed to merely invalidating it) is permissible and does not constitute a violation of the separation doctrine. That is the limited scope of the legislature under the Constitution in India while dealing with court judgements.

In the matter of Tribunals, the Union Government has overridden the effect of various successive judgements rendered by the Supreme Court, brazenly throwing the principle against legislative overruling to winds.

But in the matter of tribunals, the Union government has, as a matter of fact, overridden the effect of various successive judgements rendered by the Supreme Court, brazenly throwing the principle against legislative overruling to winds. So much so that the Union government has not bothered to implement the direction to establish a National Tribunals Commission (an independent oversight body) to govern the appointment of members and infrastructural needs of tribunals, despite three judgements of the Supreme Court since its Rojer Mathew judgement rendered in 2019.

The deadlock is affecting the judiciary in so many ways. It has been made to look weak in public perception, as its directions even on the judicial side on these aspects are not being complied with by the Union government. A weak image of the judiciary in public perception erodes people’s faith in it, which is counter-productive for the governance of the country in the long run.

Readers may themselves decide now as to who is crossing the Lakshman Rekha.

Sakal Bhushan is an advocate practising at the Delhi High Court and the Supreme Court.