Why the SC ruling on CEC, EC appointments may not achieve the intended target

Landmark, historic, reformist, progressive — these are just some of the plaudits that have been showered upon the verdict by a five-judge Constitution Bench of the Supreme Court in the Anoop Baranwal v. Union of India case.

Ruling on four civil writ petitions that demanded more or less similar reliefs, Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar have, through a unanimous judgment, said that appointments to the posts of Chief Election Commissioner (CEC) and the Election Commissioners (EC) 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… and the Chief Justice of India”. This norm, the Constitution Bench has ruled, will “continue to hold good till a law is made by Parliament”.

This new norm for appointing the CEC and the ECs will, until the Parliament enacts either a similarly enabling or entirely contrasting law, replace the existing system of such posts being filled by the President, on the advice of the Prime Minister. Critics of the now-disbanded system believed it severely compromised the autonomy of the Election Commission. Allegations were frequently made of regime-favourites and not politically impartial officers being handpicked by the Prime Minister for appointments as ECs/CECs.

Watch: Former CEC Quraishi: Govt bound to pass law for CEC, EC appointments

As such, serious doubts were cast repeatedly on the fairness of the apparatus that has the ominous task of ensuring free and fair elections to Parliament and state legislatures in the world’s largest democracy. Those swooning over the judgment assert that the new selection system will ensure greater scrutiny and transparency in the appointment of the ECs and free the Election Commission from the clutches of Executive control and manipulation.

Venerable commentators of electoral reforms, like former CEC SY Quraishi, co-founder of the Association of for Democratic Reform Prof. Jagdeep Chhokar, and eminent lawyers such as Gopal Sankarnarayanan, Kaleeswaram Raj, Prashant Bhushan (all counsel for various petitioners in the matter) and Abhishek Manu Singhvi of the Congress party believe the judgment finally provides a long-due reform that was envisaged by the framers of India’s Constitution but, in the past 75 years, was never drafted into a law.

A dispassionate analysis

There is no denying that the system of appointing ECs that existed before the judgment was wide open for abuse — and was abused — by whichever party ruled at the Centre, more so, when such a party had as brute a majority as Narendra Modi’s BJP has now. As such, any reform that put in place a more rigorous mechanism for appointments should surely be welcomed.

However, a dispassionate analysis of the voluminous 378-page judgment (289-page verdict by Justices Joseph, Bose, Roy, and Ravikumar and the 89-page concurring opinion by Justice Rastogi) must also objectively evaluate whether the new selection system actually offers a robust reform or runs the risk of being misused or simply proving inefficient. It must also be judged not just on the basis of the relief it has provided but also on the wide array of other equally important aspects of electoral reforms on which long sermons have been given in the judgment without stipulating directions to actualise such didactic and moralistic avowals.

Since the only real relief the judgment has provided is the setting up of a selection panel to pick the CEC and ECs, let us examine this first. As mentioned earlier, the CEC and the ECs will no longer be appointed merely on the advice to the President by the PM but through the advice to the President by a selection panel, including the PM, the CJI, and the LoP in the Lok Sabha, or the leader of the largest Opposition party in the Lok Sabha.

Also read: Situation on ground alarming, need CEC who can’t be bulldozed: Supreme Court

In other words, the panel for selecting the ECs will be exactly the same as the one that currently exists to pick the CBI director. Committees that appoint the Lokpal and the NHRC chairperson also include the PM, the LoP, and the CJI, though these selection panels also include a number of other high-ranking constitutional post-holders. Those in the Opposition who are celebrating the judgment as one that would provide autonomous and impartial CECs and ECs may want to revisit their own frequent criticism of how the CBI is “misused” by the Centre to target political rivals.

They may also weigh in on the evident inconsistencies in the application of established conventions in appointing a new CBI director (or removing one) that have played out with increasing frequency over the past five years, beginning with the raucous controversy that over the removal of CBI chief Alok Verma in January 2019 or the appointment of Rishi Kumar Shukla as the agency’s director a month later.

Abhishek Manu Singhvi, who was quick to assert that the judgment had finally put in place a “more just and equitable alternative” for appointing the CEC and ECs may also want to check with his party chief Mallikarjun Kharge, as well as Adhir Ranjan Chowdhury, the current leader of the Congress in the Lok Sabha, and ascertain how much weight their objections and suggestions carried when they sat on panels to shortlist a CBI chief. Both Kharge, during his stint as Leader of the largest Opposition party in the Lok Sabha, and Chowdhury repeatedly complained of their views not being considered in the appointment of the new CBI director. On more than one occasion, they boycotted the selection panel’s meeting.

Not a return of judicial activism

It must also be pointed out that though the judgment by the Constitution Bench is being hailed — or even criticised by some — as a return of judicial activism, it isn’t really so. The verdict has not come on a suo-motu reference taken up by the apex court or on a PIL but on a batch of civil writ petitions that demanded filling up of a constitutional vacuum. Besides, it comes with the rider that the current arrangement is only applicable till Parliament enacts a law on the issue. As legal commentator Gautam Bhatia points out, the judgment follows the trajectory broadly laid out under Article 324 of the Constitution, which provides for the Election Commission.

Drawing from Constituent Assembly debates, Justice Joseph’s majority judgment elaborates how drafters of the Constitution wanted to isolate the election machinery from Executive control but, at the same time, could not arrive at a consensus on how to achieve this. As such, Article 324 (2) merely stipulated that the CEC and ECs will be appointed by the President “subject to the provisions of any law made in that behalf by Parliament,” thereby leaving a vacuum because, in the seven decades that have elapsed since, a law for such appointments was never enacted. Thus, the judgment now prods Parliament to fulfil the stipulation made in Article 324 (2).

Also read: Explained: Why SC and Centre are warring over Election Commission

Those celebrating the judgment as a historic reform may also want to consider the long and chequered history of Parliament enacting laws that effectively overturn judicial pronouncements. If the regime with its brute majority ensures the enactment of a law that contravenes the selection panel as stipulated in Anoop Baranwal, or even reverts through legislation to the appointment system that the court has set aside, what happens to the current reform?

Congress MP Manish Tewari, who had moved a Private Member’s Bill in Parliament for transparency in the appointment of CEC and ECs, was understandably sceptical about the implications of the apex court’s judgment. Noting that the judgment says that the new selection procedure will continue only till the government brings a law laying down the procedure of appointment, Tewari said, “Technically, the government can bring a law that nullifies the scope of the judgment.” He told The Federal that a “more lasting solution in the interest of transparency and impartiality would have been to constitute a broader Collegium of appointment that includes the PM, the Union Home Minister, the LoPs in both Houses of Parliament, the CJI, and two seniormost judges of the SC nominated by the CJI” because such a panel would “limit the government’s influence”.

No change to current ECI composition

The judgment does nothing to alter the current composition of the Election Commission. Recently concluded elections to the legislatures in Tripura, Nagaland, and Meghalaya saw the Opposition repeatedly knocking the doors of the poll panel with complaints of electoral malpractice by the BJP or uneven application of the Model Code of Conduct. On each occasion, the action desired by the Opposition from the CEC or the ECs was turned down. Inherent in subsequent claims of the Opposition were insinuations that the CEC and the ECs were acting with a bias.

The current CEC, Rajiv Kumar, will continue in office till February 2025, while the term of EC Anup Chandra Pandey will end in February 2024. The other serving EC, Arun Goel, will succeed Kumar as the CEC in February 2025 and demit office in December 2027.

Goel’s controversial appointment to the poll panel in November 2022 — within a day of his taking voluntary retirement from the IAS — was commented upon at length by the SC in its judgment since Prashant Bhushan, counsel for a petitioner, had sought quashing of Goel’s appointment. Interestingly, in his majority judgment, Justice Joseph noted, “…we are a little mystified as to how the officer (Goel) had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him (as EC)”.

Also read: SC asks for specific files on appointment of Arun Goel as election commissioner

However, even though the judgment outlines in great detail the discernibly arbitrary and flawed process through which Goel was appointed as EC, the court refrained from ordering the relief Bhushan sought and, instead, noted in its judgment, “…the observations are not meant to be an individualised assessment of the appointee, who we do note, has excellent academic qualifications. But as we have noted academic excellence which members of the civil service may possess cannot be a substitute for values such as independence and freedom from bias from political affiliations.”

What will the judgment achieve?

Given that the judgment will only apply prospectively and, as such, not affect the current composition of the poll panel, Tewari feels that the verdict “will not achieve the intended intent” of giving all stakeholders in Indian elections a level playing field by way of an impartial Election Commission. “If this judgment has only a prospective effect and the current commission continues as it is, despite the lack of transparency in certain appointments that was brought out during arguments in this case, then the judgment will not achieve its intended intent,” Tewari said.

Goel’s appointment wasn’t the only instance where the Constitution Bench waxed eloquent on issues of transparency, the conducting of free and fair elections, ensuring independent election commissioners, and the like, but without giving any directions on how such objectives should be achieved. For instance, the court commented at length on the merit of demands by petitioners to direct the constitution of a permanent Secretariat for the Election Commission of India and for charging its expenditure to the Consolidated Fund of India but eventually made only a “a fervent appeal” to the Centre and Parliament to “consider bringing in the necessary changes so that the Election Commission of India becomes truly independent”.

Similarly, the judgment canvassed for providing ECs the same protection against their removal as the one that the CEC enjoys — a CEC can be removed only through a process similar to the impeachment of a SC judge — but passed no definitive instructions on this score. Justice Rastogi, however, mentioned in his concurring opinion that “it is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner”.

A senior advocate who appeared for one of the petitioners told The Federal, requesting anonymity, said, “We have seen an increasing trend of judges, serving and recently retired, going to seminars and pontificating on what all is essential to safeguard various aspects of democracy and to prevent India from turning into an electoral autocracy. This judgment, though partly reformative, brings in a new paradigm of judgments outlining all the right problems but without offering solutions.”