Shubham Sehgal and Saksham Chaturvedi*

Introduction

On 10^th August 2023, the Union Law Minister introduced The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (for brevity “the CEC Bill”) before the Rajya Sabha. The recently tabled bill in the Parliament latently dilutes the result and subverts the efforts of an 8-year-long painstaking constitutional litigation that transpired before the Supreme Court of India.

The CEC Bill primarily aims to regulate the appointment of the Chief Election Commissioner (“CEC”) and his compatriot Election Commissioners (“ECs”). This CEC Bill follows the judgment of the Supreme Court in Anoop Baranwal v. Union of India which flagged the due and disappointing legislative vacuum of an express law on the appointment of the CEC by the Parliament – a matter contemplated under Article 324(2) of the Constitution.

This article argues against the constitutional vires of the CEC Bill. First, the article demonstrates that the CEC Bill impinges on the independence of the Election Commission (“EC”). Second, the article argues that independence of the EC is part of the basic structure of the Constitution. Last, the article establishes that such impingement of the EC is violative of the basic structure doctrine.

The CEC and ECs Bill

Section 7 of the CEC Bill provides that the CEC and ECs shall be appointed by the President on the advice of a selection committee. The selection committee shall comprise the Prime Minister, as the Chairperson, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister, as members.

This enactment closely follows the judgment in Anoop Baranwal, wherein the Supreme Court on the lines of Prakash Singh and Vineet Narain, and based on the Goswami Committee Report, created a selection committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India, to recommend names to the President for appointment as CEC and ECs.

The Constitution bench in Anoop Baranwal astutely noted that the Constituent Assembly’s expectation of a law for the appointment of the CEC and ECs remained languishing for more than 70 years. In this legislative void, the Apex Court found sufficient occasion to intervene and created a committee to counsel the President on appointments of the EC – albeit until a law on the subject is in place.

Notably, the bill substitutes the membership of the Chief Justice of India from the selection committee for a Union Cabinet Minister, an appointee of the Prime Minister. In the humble opinion of the authors, this substitution is a pivotal departure from the spirit of Anoop Baranwal; a development that goes to the root of the matter – delinquents the independence of the EC, invalidates the spirit of Anoop Baranwal and accordingly places the CEC Bill on a precipice against Constitutionality.

The EC and Incumbent Executive’s Majority

In Anoop Baranwal, the Supreme Court observed that the Election Commission was a place posited with plenary powers. The Commission is entrusted with the charge of conducting elections to Parliament, State Assemblies, and the position of the President and Vice-President.

Accordingly, the Supreme Court cautioned about shielding the independent nature of the Election Commission from executive interference. The relevant para of the judgment, being valuable to the discussion, is reproduced below:

“222. The Election Commissioners including the Chief Election Commissioner blessed with nearly infinite powers and who are to abide by the fundamental rights must be chosen not by the executive exclusively and particularly without any objective yardstick.”

It is imperative to note that the Court was not only lucid but also insistent about an impartial appointment to the Election Commission.

In this vein, it is important to understand how a selection committee comprising the incumbent or ruling executive in the majority compromises the independence of the Commission.

In Section 7 of the CEC Bill, the substitution of the Chief Justice of India with a Union Cabinet Minister, handpicked by the Prime Minister, magnifies concerns surrounding the autonomy of the Election Commission. Such a configuration presents a potent challenge: With two members closely aligned with the ruling party executive, the Commission’s impartiality will be compromised. The mathematical reality becomes a threat to the institution’s independence, as the collective voting strength of the ruling executive will consistently outweigh the single voice of the opposition leader – who will be reduced to a state of perpetual minority.

It is also important to eliminate any executive bias from the appointment process because the incumbent executive will always possess considerable stake in the conduct of the electoral process and would want to exercise a self-interested decision to appoint a yes-man rather than a neutral public official.

This substitution also eliminates the sole judicial representative from the selection committee, effectively making it a matter exclusively controlled by the executive branch. This change contravenes and ignores the precedent set by the Supreme Court in Anoop Baranwal – which outrightly rejected any form of executive dominance over the selection process. This alteration not only upsets the balance of the power within the committee but also weakens the essential checks and balances that a judicial presence usually brings to the appointment process.

Such apprehensions against the compositional matrix of the selection committee are not unfounded. Similar compositions of a high-powered selection committee, which end-up having the ruling executive with the majority voting power, have previously been put in place for the appointment of inter alia, the Central Vigilance Commissioner, the Central Information Commissioner, the Chairperson of Lokpal and the Chairperson of National Human Rights Commission. However, as the record shows, these selection committees have almost always seen the Government’s nominee prevail, while the Opposition’s viewpoint has often been relegated to a perfunctory consideration.

Importantly, the Supreme Court has remained steadfast in protecting State institutions from an executive bias to uphold the separation of powers and underscore institutional independence. In Supreme Court Advocates-on-Record Assn. v. Union of India, the Supreme Court had occasion to test the Constitutionality of the Ninety-Ninth Constitutional Amendment Act. The Amendment introduced Article 124A to the Constitution, providing for a 6-member National Judicial Appointment Commission (“NJAC”) to recommend the appointment of judges to the Supreme Court and High Courts. In the case of NJAC, unlike other selection committees constituted by the Parliament, there was no clear voting majority which vested with the executive. Still, the Supreme Court read down Article 124A and declared the composition of the NJAC unconstitutional for interfering with the basic feature of separation of powers between the executive and the judiciary, as also attempting to dilute the independence of the judiciary.

The Court also recounted an important observation extended by the majority bench in Supreme Court Advocates-on-Record Assn. v. Union of India (2^nd Judges Case), wherein it was consciously outlined that the independence of judiciary must be safeguarded from an executive discretion – which in the capacity of the appointing authority, would impinge on judicial autonomy.

In similar vein, the proposed substitution of the Chief Justice with a Cabinet Minister appointed by the Prime Minister ensures that the appointment of the CEC and ECs remains an executive prerogative. This not only incapacitates the EC’s autonomous functioning but also obviates any scope of a fair electoral process, ultimately diluting the institutional independence of a crucial Constitutional body.

The Independence of the EC within the Basic Structure Doctrine

At this juncture, it is vital to understand why the composition of the previously mentioned selection committees is not unconstitutional even though they are legally characterized by executive predominance? Additionally, why is a similar matrix unconstitutional when applied to the EC?

The answer to the above questions lies in a two-fold distinction in the nature of the functions of these bodies and their relationship with the basic features of the Constitution.

First, the EC is a Constitutional body and not merely a statutory body. This is evidenced by the fact that the EC derives its powers from Article 324(1), while the other bodies came about through post-independence statutory enactments. This places the EC on a different pedestal and substantiates its integral role within the Constitutional framework.

Second, the independent functioning of the EC is necessary to uphold basic features of the Constitution – democracy and free and fair elections. The Supreme Court’s rulings in Assn. for Democratic Reforms and People’s Union for Civil Liberties have underscored that the notion of free and fair elections is a necessary concomitant of parliamentary democracy and is a basic feature of Indian polity.

In contrast, while bodies like the Central Vigilance Commission (CVC), the National Human Rights Commission (NHRC), the Lokpal, and the Central Information Commission (CIC) undoubtedly play crucial roles in upholding transparency, accountability, and human rights within the governance framework, their functions do not bear a similar and direct correlation to the bedrock principles of the Constitution. These statutory bodies operate within specific spheres of governance, but their mandates do not extend to the rudimentary element of our democratic fabric.

It is not to say that the independence of other statutory institutions should be undervalued or dismissed. Each institution serves a vital purpose in the functioning of our democracy. However, strictly speaking within the context of the basic structure doctrine, the EC’s role stands as a linchpin in preserving the essence of our constitutional democracy, making its independence a matter of preeminent Constitutional importance.

This scheme of difference between the nature of the powers between different institutions was outlined by the Court in Anoop Baranwal. While contrasting the position of the Comptroller and Auditor General of India (a constitutional body) under Article 148(1) with the position of the CEC and ECs under Article 324(2), the Court reasoned that the CEC and ECs stand on a higher pedestal within the Constitutional scheme owing to its setting and purpose.

Thus, the independence of the EC stands out as a functional necessity in light of the basic structure doctrine and hence protecting its independence becomes a Constitutional imperative. While the role of other statutory institutions is inarguably crucial, the EC is posited with a distinct status because of its indispensable function in ensuring free and fair elections. This is precisely why a compositional matrix influenced by executive discretion for the EC would become flagrantly unconstitutional.

The CEC Bills Falls Foul of Constitutionality

In Kesavananda Bharati, the Supreme Court laid down that any amendment of the Constitution by the Parliament may be declared void if it violates the basic structure doctrine. Simply put, the basic structure doctrine is a set of essential features of the Indian Constitution that cannot be amended by the Parliament in exercise of its powers under Article 368. The concept of a parliamentary system, democracy, secularism, federalism, and the rule of law, are some examples of concepts which fall within the basic structure of the Constitution.

The Supreme Court in Indira Nehru Gandhi v. Raj Narain had occasion to examine the Constitutional vires of the Thirty-Ninth Constitutional Amendment. The Amendment had inter alia provided that Elections to the Office of the President, Vice-President and Prime Minister would be beyond the scope of judicial review. However, the Amendment could not find favour with the Constitution Bench and was struck down for being opposed to the basic structure doctrine. In this breath, the majority bench reasoned that democracy was a basic feature of the Constitution, and the amendments mutilated the concept of free and fair elections – a basic postulate of democracy.

In M. Nagaraj v. Union of India, the Supreme Court located “equality” as an essence of democracy, and accordingly ruled that it would enjoin democracy as a basic feature of the Constitution. The Court delineated that even if free and fair elections were not independently and expressly part of the basic structure, yet being part of representative democracy, they would be construed as an essential feature of the Constitution.

These affirmations establish that free and fair elections are integral to exercising the fundamental right of adult franchise in the real sense and protecting India’s character as a democracy. Thus, free and fair elections would fall within the composite scheme of the basic structure doctrine. ^[1]

In Anoop Baranwal, the motive and reason that weighed with the Court to exercise creative judicial activism arose from the realization that any bias in the Election Commission’s functioning could undermine the country’s democratic structure. In this vein, the Court noted that appointment to the EC must not be seen as biased – something which was also contemplated by the Constituent Assembly. Speaking for the majority bench, K.M. Joseph J, described the independence of the EC as “a sterling and indispensable attribute” of any institutional functioning. The Court also went on to hold that any infirmity in EC’s independent functioning would attack the basic structure of Indian democracy.

Since the provisions of the CEC Bill impinge on independence of the Election Commission, it would by reasonable and proper extension constitute a violation of free and fair elections. Hence, the CEC Bill is by and large, by implied and express reading of the jurisprudence on basic structure doctrine and the judgment of Anoop Baranwal, an ostensibly unconstitutional bill.

Conclusion

The approach taken by the Union Government in introducing the CEC Bill, in our opinion, reflects political impulsiveness. Successive suggestions, including the Dinesh Goswami Committee Report (1990) recommended that the CEC and fellow ECs should be appointed by a collegium comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice. This suggestion was reiterated, as recently as, by the present Government’s self-anointed Law Commission in the 255^th Law Commission Report (2015). However, these suggestions are not put into effect in the CEC Bill bringing us back to square one.

Apart from upsetting the delicate equilibrium of power within the selection committee, the substitution of the Chief Justice for the Prime Minister’s handpicked Cabinet Minister negates the counterpoise that a judicial presence would have brought to the appointment process. The independence of the Election Commission can only be secured in the absence of executive discretion in terms of the appointment of the CEC and ECs.

The introduction of the CEC Bill before the Parliament has laid to rest a legislative vacuum that persisted for more than 7 decades. Since the CEC Bill is still at a nascent stage, it is a bleak hope that the Bill does not translate into an Act in the same form. However, such hopes are lofty ideals, given the fact that the composition of the selection committee is the true crux of the Bill, and it is unlikely that the Government may yield from its original position.

References

[1] See Mohinder Singh Gill v Chief Election Commissioner, (1978) 1 SCC 405; S. Raghubir Singh Gill v S Gurcharan Singh Tohra, 1980 Supp SCC 53; Kihoto Hollohan v Zachillhu, 1992 Supp. (2) SCC 651; Union of India v Association for Democratic Reforms, (2002) 5 SCC 294.

*Shubham Seghal is a third-year undergraduate student at Gujarat National Law University. Saksham Chaturvedi is a fifth-year undergraduate at National Law University, Odisha.