The Tale Of Separation Of Powers; Appointment of Election Commission

Ishika Garg

7 April 2023 7:35 AM GMT

  • The Tale Of Separation Of Powers;  Appointment of  Election Commission

    The Supreme Court of India (SC), in the case titled Anoop Baranwal v. Union of India, has directed a change in the appointment mechanism of the Chief Election Commissioner (CEC) and Election Commissioners (EC). The current procedure entails the President appointing the CEC on the aid and advice of the Council of Ministers. The SC has ordered that until the Parliament enacts a law in...

    The Supreme Court of India (SC), in the case titled Anoop Baranwal v. Union of India, has directed a change in the appointment mechanism of the Chief Election Commissioner (CEC) and Election Commissioners (EC). The current procedure entails the President appointing the CEC on the aid and advice of the Council of Ministers. The SC has ordered that until the Parliament enacts a law in this regard, the CEC and ECs shall be appointed on the recommendation of a 3-member committee comprising of the Prime Minister, the Chief Justice of India, and the Leader of Opposition of the Lok Sabha. This is akin to the procedure adopted for appointment of the Director of the Central Bureau of Investigation.

    The Judgement: The Whys And Hows Of The Unanimous Verdict

    The judgement came in the wake of four writ petitions questioning the effect of Article 324, asking for a fair, just, and transparent process of appointing one of the most important institutions of our democracy, and other adjoining matters concerning funds and secretariats. The prayers in these petitions also rely on the multiple reports of the Law Commission of India and several specialised committees. The arguments of the petitioners focus majorly on the text of Article 324 which vests the power to conduct elections in the Election Commission of India (ECI). They rely on the Constituent Assembly Debates and post-Independence reports and judgements to argue that the scheme of Article 324 requires the Parliament to enact a law to establish a mechanism to appoint the CEC. The current procedure arises out of this provision itself. However, it was meant to fill the gap until the time the legislature came up with a law for the same. Since this gap has not been filled, there is a vacuum. The petitioners further assert that the governments have political parties as their underlying units, and the political interests of these parties have deterred them from formulating a law to effectuate the constitutional scheme. This in itself constitutes a non-democratic approach towards the institution and impinges on its independent character. They invoke the citizens’ right to free and fair election which is being denied due to the legislative inaction towards ensuring an independent ECI.

    The Union of India, on the other hand, has argued that there is no vacuum since the Constitution lays down a procedure already. Article 324(2) read with Article 74 means that the CEC and ECs are to be appointed by the President on the aid and advice of the Council of Ministers. They have implored the doctrine of separation of powers to say that any judicial intervention in the constitutional scheme of appointment of the CEC will result in the judiciary encroaching upon the functions of the executive. Moreover, it was argued that mere possibility of better mechanisms for such appointment cannot be a ground to impinge on the constitutional scheme.

    Thereafter, the SC went into the constitutional history of Article 324, analysing the Constituent Assembly Debates along with the jurisprudence surrounding it. The bench agreed with the petitioners regarding the intention of the Constituent Assembly in delegating the task of formulating a procedure for appointment of the ECI to the legislature and since the latter has failed to perform it, there is a vacuum needing to be filled. But why did they require a law for this? It is inferred that enabling the President assisted by the executive alone leaves room for the executive to dictate the entire process. The bench examined the importance of elections in a democracy and why the independence of a body like the ECI is extremely significant to ensure the rule of law. The SC stated that the doctrine of separation of powers is not strictly adhered to in India and there is room for judicial activism which allows the courts to interpret law in a manner that it might create law. The bench has rooted this argument in the purpose behind adopting the doctrine in the first place – the requirement for checks and balances on the other organs. Therefore, the argument is that the Court, in the present case, is checking the powers of the executive in the current mechanism of appointment, and therefore, the directions laid down by it do not violate the doctrine. The question remains as to whether the judiciary, in a bid to check the powers of the executive, forgot to balance its own?

    The Two Sides Of The Separation Of Powers: Unpacked

    Allow For Checks and Balances - Petitioners

    The petitioners have linked the independence of the ECI with the fundamental rights of the citizens. They argue that there is a right to free and fair elections, and if the body conducting the elections is working under the influence of the executive, and thus the ruling party which is also going to contest the next elections, then the right is infringed upon. They further argue that the current procedure is arbitrary and violates the basic structure of the Constitution by endangering the democratic setup based off of elections free of bias. Therefore, the court was requested to issue directions to the Parliament to frame a law for the same and protect Article 14 and the basic structure.

    The arguments of the petitioner, gathered from the Writ Petition, are essentially grounded in democracy, professionalism, and protection of fundamental rights. These three factors have been stated as the principles motivating the modern doctrine of separation of powers by Bruce Ackerman. Interestingly, Ackerman mentions the ECI as an example of how India protects the independence of democracy by letting the President appoint the CEC instead of the Prime Minister, and thus maintaining a fine balance between the ECI and the executive. While that indicates a half-baked understanding of the Indian political and governance framework, and thus his support for the current model as effective separation of powers maintaining independence of the EIC, Ackerman gives us the argument for the fourth branch of democratic setup – the autonomous bodies. These bodies undertake certain tasks and exercise powers which are a mix of legislative, executive, and judicial features. Since this seems like these independent agencies have been granted overarching powers, Ackerman discussed the need for safeguards. He proposed that the integrity branch be empowered to engage in ongoing oversight of the actions of the other organs. He premised this proposal on the position that bureaucracy cannot work if bureaucratic decisions are up for sale – that the one who pays more gets a decision in their favour. The integrity branch should receive salaries devoid of the legislature’s influence, their eventual career growth should not be in the hands of the executive, and they should have a constitutional backing to funding and other requirements which cannot be impinged upon. By and large, if the functioning of the autonomous body is autonomous in a true sense, uninfluenced by the other three organs, it will ensure the independence of their decisions and thus the democratic principles of fairness.

    This fourth branch also finds mention in Tarunabh Khaitan’s article, which counters the critique of the autonomous bodies grounded in excessive empowerment of bureaucracy. He says that the party-state fusion of these autonomous bodies with the executive, wherein the latter controls the former, undermines their powers in relation with the executive. He states that the balance between the roles of the political executive and the opposition in the appointment mechanism is necessary for maintaining the independence of these institutions and therefore, the horizontal accountability of the executive towards the other organs. He explicitly mentions the office of the Governor at the pleasure of the President to be a constitutional design flaw which is abused by the executive who advices the President. So, we mix two forms of government – parliamentary and presidential – and fail at maintaining the balance because of misuse. This is identical to the argument that the petitioners make – the mechanism to appoint Governors is the same as that of the CEC – and therefore the same concerns arise for this office.

    The integrity branch is basically what the petitioners are asking for as relief. They argue that the ECI is an autonomous body under the Constitution of India, responsible for conducting elections, which is the backbone of the democratic institutions of this polity. The ECI is the fourth branch and should ideally have the features of the integrity branch proposed by Ackerman. The petitioners are requesting to free the appointment mechanism of the CEC from the stronghold of the executive, if not entirely, then by instituting a balanced mechanism with neutral parties as has been proposed by several dedicated commissions in the past. The SC has also discussed the legitimate power of reciprocity wherein an individual feels indebted to another, and thus is obligated to reciprocate in terms of some favour. Once the appointees are free of this notion due to change in the mechanism, the chances of bias percolating into the functioning of the ECI would diminish, thus proclaiming its independence.

    The above discussion leads to the inference that the petitioners have urged that the doctrine of separation of power should be used to further democracy and provide for checks and balances on the organs of the government along with empowering the fourth branch to ensure independence and objectivity.

    Do not step into executive domain - Respondent

    The Union of India has focussed on the doctrine of separation of powers to argue for the flip side. They say that due to the doctrine, which is fairly entrenched in the Constitution, the judiciary should not and cannot interfere with the President’s mandate to appoint the CEC. Since the separation of powers has been adjudicated as part of the basic structure of the Constitution, the judiciary cannot violate it. The SC has vastly discussed the same in light of precedents deciding that the judiciary cannot encroach upon the constitutional authority of the President despite a loose separation of power in India. Afterall, since the judiciary is an interpreter of law and the Constitution, it cannot foray out of these limits at its discretion.

    The question arises as to whether the counsel for the Union of India are arguing for Montesquieu’s theory of an equal Trinitarian separation of powers wherein the functions of the three organs are pigeon holed.[1] There is no space for agencies like the ECI in these pigeon holes and therefore, perhaps the government wishes to accommodate them into the executive! Justice (Retd.) Ruma Pal rejected this understanding of the doctrine and stated that we do not have such a neat distribution of powers here, we have evolved it to suit our needs and we can develop it still to further the principles of democracy. This brings us to the limits of the judiciary in evolving the doctrine. Justice Benjamin N. Cardozo discussed in his book that the judges can fill the gaps within the legislative intention, based in consecrated principles, and not in thin air. The SC has mentioned the doctrine of silence wherein if there are gaps in the Constitution, the judiciary shall fill them as has been done in multiple cases by issuing guidelines and safeguards, in order to make the Constitution of 1950 a contemporary one. Article 142 allows the court to issue directions to do ‘complete justice’ and this is the backing being used by the SC to do so in the present case. They conceded that they can only issue directions in the present case until the time Parliament enacts a law, and upon further reading of multiple reports and existing mechanisms for appointments to the offices of Director of CBI, the Lokpal, etcetera, the SC found the basis for modifying the procedure for the CEC. Yet, the distinction arises as to the nature of this modification. In the case of Vishakha, there was a complete legislative vacuum for protection from sexual harassment in workplace which justified the Court’s intervention to issue guidelines that eventually went on to become a law. Similarly, in cases of absence of guidelines for educational institutes to combatragging, or for expedient scrutiny of social status certificates forSC/ST, or for preventing malpractices in adoption of children by foreignparents, it is the prerogative of the SC to do justice by laying down norms. In the present case, there exists a constitutional scheme, as well as a norm of appointment by the President, and thus it seems overarching for the SC to be relying on abovementioned cases to ground its power to lay down directions to modify the process. Here, the obvious question arises – is the court trying to skirt around the limitation of not being able to issue a mandamus to the legislature to make a law by issuing directions? Even if it assures the petitioners that any law made by the Parliament will be subject to judicial review, does it then mean that the court’s proposed solution is the only appropriate solution?

    The case brings back memories of the NJAC case, wherein the collegium system of appointment of judges was challenged. The court had ruled in favour of the system citing the independence of the judiciary as part of the basic structure of the Constitution, and the need to keep it free from the executive’s influence. The government had back then argued that the collegium system was opaque and did not allow for transparency to the public. It also did not allow for checks and balances in the procedure adopted by the collegium. The court had mentioned the power of reciprocity back then too, and to maintain the independence of the judiciary from obligations and favours along with ensuring the primacy of the judiciary in its appointment mechanism, the decision was given against the government.

    The duplicity of the Union of India can be seen right here in this case since it invokes the basic structure doctrine – checks and balances, transparency, and accountability – to accommodate the executive into the appointment procedure. They are defending these very arguments in the present case by going the other way. The Court while using the same reasons as it does before, is giving a flip decision as well. It is relying on the Derridean horizon – justice must not only be done, but seem to be done – to justify its directions in the judgement. Even if the new mechanism does not ensure impartiality and complete independence, it seems to be better than the previous mechanism. This appears to be the underlying basis. However, again we need to question whether the problem of reciprocity resolves itself by the inclusion of the CJI and the Leader of Opposition, since the appointee could still feel obligated towards the ones who voted in their favour – it does not solve the problem, rather just gives the other two members a leverage too. Infact, the current procedure exposes the politics of the ruling party if they appoint their proxies to the eminent office to undermine the procedure. In case the current procedure is adopted, the Union further gets a chance to justify any appointment due to the presence of the committee. At the moment, there is a higher chance of a challenge to the appointment of a proxy succeeding, which will be lost by formulating this committee. This is not to say that the current mechanism should remain as it is, or the new directions are ineffective, rather there is a need to formulate a better mechanism altogether. While it is conceded that the judiciary is putting the onus on the Parliament to formulate this better mechanism and the directions are operative only for the meanwhile, it is necessary to realise that the judgement sets a dangerous precedent in substantially allowing the judiciary into the domain of the legislature.

    There is widespread criticism as well as support for the judgement in terms of the judiciary doing justice or just trespassing all over the executive’s domain. Upon analysing the arguments, it seems like the judiciary has stepped on the fine line this time. The core principle behind the judgement is fair, the procedure followed to grant relief matters immensely in today’s jurisprudence since it carves a path for future courts to decide on the constitutional schemes for the fourth branch.

    Even if we side step the judgement for once, the Parliament must enact a law soon to crystalise a proper mechanism which can balance all interests of the stakeholders of the vibrant democracy that India is. The right to free and fair elections is indeed one of the hallmarks of the Democratic Republic of India and it needs to be safeguarded by all the organs alike.

    Views are personal.

    [1] Montesquieu, De L‟ Espirit des lois, 1748 quoted in Justice D.D. Basu: Administrative Law, Edn. 199.

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