INTRODUCTION
In the case of Anoop Baranwal v. Union of India, a five-judge constitutional bench, headed by Justice K.M. Joseph, unanimously ruled that the present mode of appointing the Chief Election Commissioner and Election Commissioners would be altered and now a three-member committee, consisting of the Prime Minister of India, the Leader of the Opposition party, and the Chief Justice of India, will advise the President on these appointments until Parliament enacts relevant legislation. This article aims to analyse the court’s rationale behind this decision.
BRIEF DESCRIPTION OF THE CASE
In 2015 a PIL was filed by Anoop Baranwal arguing that the current mode of appointments for the Election Commission of India to be unconstitutional. The PIL claimed that the current system of appointments is violative of Article 324(2) of the Constitution. The said PIL prayed for the set-up of an independent ‘Collegium-like’ system for the appointment of election commission officials.
In 2018 a second PIL was filed on the same issue by BJP leader Ashwini Upadhyaya. The supreme court referred the issues to a Constitution bench. The court observed that there was appointment of Arun Goel as the election commissioner which was carried out with “lightening speed” and the whole procedure got completed within 24 hours. This forced the court to take up this matter on an urgent basis.
PRESENT APPOINTMENT PROCESS
Article 324 of the Constitution deals with the Election Commission. The provision provides that the President is vested with the power to appoint the Chief Election Commissioner and Election Commissioners on the basis of the relevant provisions of law. However, due to the parliament’s failure to enacted a relevant law on subject matter even after passage of almost 7 decades, appointments have been made by the President on the advice of the Council of Ministers, headed by the Prime Minister.
KEY ISSUES
- Does the current process for ECI appointments violate the right to equality?
- Does the current process for ECI appointments violate the right to free and fair elections?
ARGUMENTS ADVANCED
Petitioners argued that the absence of clear eligibility laws for Election Commissioners creates a legal gap, necessitating judicial intervention to ensure free and fair elections, crucial for democracy. They contended that biased appointments compromise the Commission’s independence, with a trend of appointing older candidates and ex-bureaucrats further politicizing the body.
The Union defended the executive’s authority, citing past Chief Commissioners’ ‘honest record’ and urging judicial restraint, emphasizing separation of powers. Civil servants are preferred for their fitness, with the Attorney General opposing claims of a legal vacuum and advocating against judicial intervention, citing the President’s authority under Article 74.
JUDGEMENT
Having heard the arguments from both the sides, the bench considered various aspects like Scope of Manipulation, Impartiality, Fairness, Public Confidence, Check and Balance, Rule of Law etc. while delivering its judgement.
The five judge bench bench unanimously ruled against the current appointment process, holding it violative of the right to equality and free and fair elections.
In order to secure the independence of the Election Commission, the bench ordered for change in the process for Election Commission appointments. The Apex Court held that the appointment of Chief Election Commissioner and Election Commissioners shall be done by the President of India on the basis of the advice tendered by a Committee consisting of
- Prime Minister of India,
- Leader of the Opposition in the Lok Sabha and,
- Chief Justice of India
The Court also clarified that in case of absence of Leader of Opposition, the Leader of the largest Party in the Opposition in the Lok Sabha shall be the member of such committee.
The apex court directed for the continuance of this regime until Parliament enacts relevant legislation. Citing landmark cases like Vishaka v. State of Rajasthan and the Third Judges case, the court reiterated the Judiciary’s role in filling gaps in the interest of public welfare.
