Supreme Court’s ECI Verdict Is Jurisprudentially Unsound

Dr. Harish B. Narasappa

Many observers have hailed the Supreme Court's decision in Anoop Baranwal versus Union of as a judgement that strengthens the independence of the Election Commission of India (ECI). A Constitution bench of the Supreme Court held that the appointment of the Chief Election Commissioner (CEC) and the Election Commissioners (ECs) can only be done after a recommendation by a committee consisting of the Prime Minister, the Leader of the Opposition (or the leader of the largest opposition party) in the Lok Sabha and the Chief Justice of India.

Such a committee is not contemplated in Article 324(2) of the Constitution; it provides that the CEC and the ECs are to be appointed by the President, subject to any law made in that regard by Parliament. As the Parliament is yet to make such a law, the court felt it was necessary to direct a temporary process to fill the gap. In its view, the fact that various State-appointed committees had recommended that a law be made was indicative of the gap that Parliament's failure to legislate had left.

While having a consultative process for the appointment of the CEC and ECs is no doubt desirable, the reasoning adopted in the judgement raises significant questions about fundamental principles underpinning our constitutional law.

Below are some key issues that arise from the judgement.

In the majority judgement, Justice K.M. Joseph has sought to justify the court stepping into a legislative role in some detail. He draws reference to previous examples where the court has stepped in to fill policy gaps or temporarily create regulatory frameworks.

But these arguments fail to provide adequate justification for the judiciary stepping in and performing the role in the first instance. The only jurisprudential justification that Justice Joseph gives is the argument that India does not possess a strict separation of powers but a nuanced one which vests residual law-making powers in the judiciary.

There is no express or implicit provision in the Constitution that vests any form of residual law-making power to the judiciary. This contrasts with the executive branch, which does have residual law-making powers under Article 73.The court has often found its powers to issue guidelines and rules in Article 142. In fact, Article 142 has attained ‘Supreme Court can do anything' status due to the court regularly resorting to its use. However, neither prior examples of convenient rule-making nor a provision enabling directions to do complete justice result in sound jurisprudential reasoning to assume residual legislative power to the judiciary.

The judiciary is not a deliberative policy-making body like the legislature. It does not have the ability, nor a process, to deliberate various policy options or deal with public opinion. This judgment, by expressly opening a window to judicial law-making, may cause significant trouble if this power is used regularly.

The judgment highlights the fact that the Parliament's authority in our society has weakened over time. The Parliament does not spend enough time in law making and has completely abandoned its duty to supervise the executive. This is not a feature unique to the current Parliament alone; it is only more apparent currently as there is a government with a large majority. If partisan appointments to independent institutions are not scrutinised or questioned properly in the Parliament, then the judiciary becomes the sole forum where the breach of law may be agitated.

However, judicial challenges must be within the scope of the four corners of judicial review, and cannot include the ethical and moral challenges that are possible in the Parliament. Until such time that the Parliament recovers its ability to make new laws in a deliberative fashion and hold the executive accountable legally, ethically and morally, the judiciary will, by default, be faced with questions to which it may not be able to effectively resolve without resorting to judicial activism.

As a nation, this is a matter of concern, and a few cases of ‘law making' by the judiciary cannot paper over this oceanic hole in our polity. The Constitution requires a functioning legislature as sans the same, the executive branch does not feel constrained to act reasonably.

Appointments to institutions that are to function independently and/or discharge functions that may bring them into conflict with the executive, have always been an area of contention in India. The political reality is that all parties in power wish that independent institutions act in a fashion that is convenient to them. This primary motivation inevitably colours the appointment process, as the search is always for people who are pliable rather than independent-minded.

This motivation also conflates the appointment process with the actual functioning of the institution. There is no guarantee that a person nominated by the committee envisaged by the Supreme Court will function more independently than a person nominated by the political executive or vice versa.

Conflating independence of functioning with independence in the appointment process is faulty logic and does not necessarily guarantee a better process or outcome in terms of quality of people who populate institutions. A comparison with the appointment of judges to the Supreme Court and the high courts as well as other positions like the Chief Vigilance Commissioner (CVC) shows that merely expanding the committee to nominate people (like the CVC) or adopting a self-replicating process (as is the case with the higher judiciary) does not guarantee independent functioning.

What, then, is the answer to the vexed question of appointments? As a start, the executive should always follow a set process and act reasonably. It will help if the judiciary refuses to be shy about invalidating appointments that do not follow a proper and reasoned process. Presently, the judiciary is guilty of treating the executive with deference by mostly applying its judgments prospectively and refusing to invalidate the consequences of previous unreasonable actions. Having a functioning Parliament will also help in legitimising appointments. This is a much better approach than the judiciary constituting committees.

Giving a role to the Chief Justice of India in the appointment of officials to other institutions is plain and simply wrong as far as our jurisprudence is concerned. No amount of clever reading of the Constitutional Assembly Debates can lead us to a conclusion that the Chief Justice of India (or any other member of the judiciary) should be involved in appointment of officers to other State institutions.

Even at a practical level, it defies the logic of judicial independence. How is the judiciary expected to maintain its independence if senior judges are involved in the nomination of officers from time to time? And how will any judge be aware of the record or suitability of a particular officer over another?

In the Three Judges' cases, the Supreme Court went to great lengths to explain that anyone other than judges are unsuitable to evaluate the merits of lawyers while determining their suitability for judicial office. The same logic ought to be extended in the case of other officers. Judges are not equipped with the knowledge to evaluate the suitability of other officers for their roles. Such appointments do not constitute judicial decisions being made on the basis of facts and law and consequently, there is little room for the judiciary to be involved in it.

The passing observation in the judgement that the Constitution does not have a strict separation of powers but a nuanced one could have serious repercussions in the future. While the court was quick to point out that checks and balances were an essential part of this separation of powers, it failed to elaborate on this nuanced variation of separation of powers.

Separation of powers is relevant beyond the judiciary's relationship with the executive and the legislature. A relevant example is the constant encroachment of executive powers by members of the legislature in the allocation and disbursal of funds and execution of projects at constituency level. Many states are formalising the involvement of members of legislature in the execution of various projects and governance of statutory bodies. This judgment may likely further empower such encroachment.

In addition, the court's rather casual approach to separation of powers in support of its intervention in the appointment of ECs is likely to foster many arguments that test the relationship amongst the three branches of government in the future.

While this judgement may be well intentioned, it may have set the stage for multiple challenges to the principle of separation of powers.

(IPA Service)