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Former Supreme Court judge Justice Kurian Joseph today questioned whether the democracy has been poisoned if the integrity of those entrusted with conducting elections could not be relied upon, calling for stronger constitutional safeguards to protect the independence of the Election Commission of India (ECI).

Delivering the inaugural address at a seminar titled “Independence of Election Commission of India: Compromised?” organized by Indian Association of Lawyers, Keralam, Justice Joseph referred to concerns expressed during the Constituent Assembly debates about the appointment of Election Commissioners and said the independence and integrity of the institution must be ensured through safeguards built into the Constitution itself.

He highlighted the warning by Constituent Assembly member Hriday Nath Kunzru that defective electoral machinery or officials whose integrity could not be trusted would poison democracy at its source.

“Dr. Hriday Nath Kunzru spoke about the integrity of the person who is holding that office. And if that integrity is not impeccable, then democracy will be poisoned at the source. Is this not what we see in the days that we have been passing through? Has the democracy not been poisoned at the hands of people who have not been acting in accordance with the vision of the Constitution? So, therefore, my dear friends, I would only say these are the times that the country should think about and take steps for protection of our democracy. And if such constitutional powers are vested in great institutions like the Election Commission of India, its integrity and independence should be ensured as well”, he said.

Justice Joseph said the Constitution should prescribe the appointment and service conditions of the Chief Election Commissioner (CEC) and other Election Commissioners, rather than leave these matters to parliamentary legislation. He also called for all Election Commissioners to be removable only through the same process as Supreme Court judges.

Justice Joseph referred to Article 324 of the Constitution, which vests the ECI with the superintendence, direction and control of the preparation of electoral rolls and the conduct of elections. He opined that the constitutional provision did not adequately address how to safeguard the independence of the institution entrusted with these responsibilities.

Referring to the Constituent Assembly debates, he recalled Dr BR Ambedkar's concerns about the absence of safeguards against the appointment of an unsuitable person as Chief Election Commissioner or Election Commissioner, including a person likely to be under the executive's influence.

Justice Joseph also referred to Constituent Assembly member Sibban Lal Saxena's proposal that appointments to the Election Commission should be ratified by a two-thirds majority of both Houses of Parliament in a joint sitting. Saxena had expressed the concern that a political party in power might appoint a staunch party loyalist as Chief Election Commissioner to secure an electoral advantage.

Justice Joseph said that the concerns raised during the framing of the Constitution underscored the importance of ensuring that the integrity of the person holding the office was not compromised.

Constitutional Institutions Must Be Protected From The Appointment Stage Itself

The Supreme Court's 2023 judgment in Anoop Baranwal v. Union of India prescribed an interim selection committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India for appointing Election Commissioners, until Parliament enacted a law on the subject.

The Parliament subsequently enacted a law replacing the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister on the selection committee.

Today, while Justice Joseph did not make elaborate comments as challenge to the new law is sub judice, he emphasised the need for safeguards to protect the integrity and independence of constitutional institutions from the stage of appointment itself.

He said that appropriate safeguards should be incorporated into the Constitution, rather than leaving the appointment and service conditions of Election Commissioners to parliamentary legislation.

All Election Commissioners Should Be Subject To Uniform Removal Mechanism

Justice Joseph also questioned the distinction between the removal safeguards applicable to the Chief Election Commissioner and those applicable to other Election Commissioners.

Under Article 324(5) of the Constitution, the Chief Election Commissioner can be removed in the same manner and on the same grounds as a Supreme Court judge, while other Election Commissioners can be removed only on the recommendation of the Chief Election Commissioner.

Justice Joseph said that all Election Commissioners should enjoy the same protection against removal as Supreme Court judges. Referring to the principle that the Chief Election Commissioner is the “first among equals”, he said that the CEC should not enjoy a special status over other members of the Commission.

“The Constitution says only the CEC can be removed by impeachment and the other Election Commissioners can be removed on the recommendation of the Chief Election Commissioner. This is also a very dangerous power, in fact, and that is actually repeated in the Act of 2023 also regarding the removal of Election Commissioners. If they are to be equated, Chief Election Commissioner and other Election Commissioners also should be equated with the status of a Supreme Court judge. Therefore, not only the Chief Election Commission, but all others also should be, can be removed only by a process of impeachment as in the case of a Supreme Court judge”, he said.

He stressed that constitutional powers are vested in institutions and are not personal prerogatives of the individuals holding high constitutional offices.

“The Chief Election Commission by himself shall not enjoy any special privilege. It is meant to be an institution, not a person. Unfortunately, people holding high constitutional office in our country have, according to me, what they call a wrong understanding or a misguided impression that there is power concentrated on the person. There's no power on the person. The Constitution of India does not confer on the person. Everywhere the power is conferred is meant to be an institutional exercise of that power. If it is an institutional exercise of that power, you will have to think twice as to when you exercise the power, how you exercise the power and where to exercise the power,” he emphasised.

Electoral Powers Should Not Be Concentrated In ECI

Justice Joseph also suggested that the ECI need not necessarily exercise superintendence and control over all state-level elections. Referring to the mechanisms followed by the United States, Switzerland and the United Kingdom, he questioned the concentration of extensive electoral powers in a central authority.

He invoked the maxim that absolute power corrupts absolutely, warning that unchecked and unguided powers could lead to institutions straying from their constitutional responsibilities.

“This is because the concentration of such high power is like the other signal that if the absolute power would corrupt absolutely. Power corrupts and absolute power corrupts absolutely. This has reached such a situation where certain institutions, they think that there is absolute power vested on them, uncontrolled and unguided and with nobody there to question and whether nobody to check, this derailment is bound to happen. So what are the checks? One of the main checks is the eternal vigilance of the people”, he said, emphasising the importance of public vigilance as a check on power vested in constitutional institutions.

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