LEGAL ISSUE: The core legal issue revolves around the process of appointing members to the Election Commission of India, specifically whether the current procedure ensures the independence and impartiality of the commission.
CASE TYPE: This case falls under Public Interest Litigation concerning constitutional law, specifically regarding the appointment process of Election Commissioners.
Case Name: Anoop Baranwal vs. Union of India
Judgment Date: March 2, 2023
Introduction:
Date of the Judgment: March 2, 2023
Citation: 2023 INSC 1902
Judges: K.M. Joseph, J., Aniruddha Bose, J., Hrishikesh Roy, J., C.T. Ravikumar, J., and Ajay Rastogi, J. (Majority opinion by K.M. Joseph, J., with a concurring opinion by Ajay Rastogi, J.)
Can the Election Commission of India truly function independently when its members are appointed solely by the executive branch? This question has been at the heart of a significant legal battle, culminating in a landmark judgment by the Supreme Court of India. The court addressed the critical need for an independent and transparent appointment process for Election Commissioners, a move aimed at bolstering the integrity of the electoral process. This judgment seeks to ensure that the Election Commission remains free from governmental influence, thereby safeguarding the democratic foundations of the nation.
The Supreme Court has mandated that the appointment of the Chief Election Commissioner and Election Commissioners will now be made by the President of India on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party), and the Chief Justice of India. This ruling aims to address concerns about the executive’s sole authority in these critical appointments.
Case Background
The case originated from a series of writ petitions filed in the Supreme Court, highlighting the lack of a transparent and independent process for appointing members to the Election Commission of India. The petitioners argued that the existing system, where the executive branch has the sole authority to appoint the Chief Election Commissioner and Election Commissioners, compromises the independence of the commission. This, they contended, could lead to biased decision-making and undermine the fairness of elections.
The primary concern was that the current appointment process, which relies solely on the executive’s discretion, does not provide adequate safeguards against potential political influence. The petitioners sought the establishment of a neutral and independent collegium or selection committee to recommend names for appointment, ensuring a more transparent and impartial process.
Timeline
| Date | Event |
|---|---|
| January 2015 | Writ Petition (Civil) No. 104 of 2015 filed by Anoop Baranwal. |
| October 23, 2018 | Two-Judge Bench refers the matter to a Constitution Bench. |
| May 15, 2022 | Vacancy arises for Election Commissioner. |
| September 29, 2022 | Constitution Bench commences hearing. |
| November 17, 2022 | Constitution Bench holds preliminary hearing. |
| November 18, 2022 | Shri Arun Goel appointed as Election Commissioner. |
| November 22, 2022 | Matter posted for further hearing. |
| March 2, 2023 | Supreme Court delivers its judgment. |
Course of Proceedings
Initially, a two-judge bench of the Supreme Court, recognizing the importance of the issue and the need for a thorough interpretation of Article 324 of the Constitution, referred the matter to a Constitution Bench. This referral was due to the fact that the issue had not been previously debated and answered by the Supreme Court. The Constitution Bench then heard arguments from both the petitioners and the Union of India, leading to the landmark judgment.
Legal Framework
The judgment primarily focuses on Article 324 of the Constitution of India, which deals with the Election Commission’s powers and composition. Specifically, Article 324(2) states:
“The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”
The court also considered the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, which outlines the terms and conditions of service for the Chief Election Commissioner and other Election Commissioners but does not specify the appointment process. The court noted that the Act does not deal with the process of selection and all the details that may be connected to it.
The Supreme Court also examined other relevant articles of the Constitution, such as Article 14 (Equality before the law), Article 19(1)(a) (Freedom of speech and expression), and Article 326 (Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage) to establish the need for an independent election commission.
Arguments
Petitioners’ Arguments:
- ✓ The current appointment process lacks transparency and independence, as it is solely controlled by the executive branch.
- ✓ The absence of a law by Parliament, as contemplated in Article 324(2), has led to a vacuum in the appointment process.
- ✓ The Election Commission’s independence is crucial for ensuring free and fair elections, which is a basic feature of the Constitution.
- ✓ The Election Commissioners should have the same protection as the Chief Election Commissioner, including the process of removal.
- ✓ The Election Commission should have an independent secretariat and its expenditure should be charged on the Consolidated Fund of India.
Respondents’ Arguments:
- ✓ The President’s power to appoint Election Commissioners is exercised on the advice of the Council of Ministers, a practice consistent with the Westminster model of government.
- ✓ There is no constitutional vacuum as Article 324(2) provides a clear procedure for appointment.
- ✓ The Election Commission has been functioning effectively, and there is no evidence to suggest that its independence is compromised.
- ✓ The matter of appointment to the Election Commission is a political question and should be left to the executive and legislature.
- ✓ The right to vote is a statutory right, not a fundamental right, and thus does not warrant judicial intervention.
| Main Submissions | Sub-Submissions (Petitioners) | Sub-Submissions (Respondents) |
|---|---|---|
| Appointment Process |
|
|
| Independence of the Commission |
|
|
| Nature of Right to Vote |
|
|
| Need for Reforms |
|
|
Issues Framed by the Supreme Court
- 1. Whether the current appointment process for the Chief Election Commissioner and Election Commissioners is in line with the constitutional mandate of an independent Election Commission?
- 2. Whether the absence of a specific law by Parliament, as contemplated under Article 324(2), constitutes a constitutional vacuum that requires judicial intervention?
- 3. Whether the Election Commissioners are entitled to the same protection as the Chief Election Commissioner, in terms of removal and conditions of service?
- 4. Whether the Election Commission should have an independent secretariat and its expenditure should be charged on the Consolidated Fund of India?
Treatment of the Issue by the Court
| Issue | Court’s Treatment |
|---|---|
| Appointment Process | The court held that the current process, where the executive has sole authority, does not ensure the independence of the Election Commission. It mandated a new appointment process involving a committee. |
| Constitutional Vacuum | The court acknowledged the absence of a law by Parliament as a constitutional vacuum, justifying judicial intervention to lay down norms. |
| Protection of Election Commissioners | The court rejected the plea for the same protection as the Chief Election Commissioner, but suggested that Parliament may consider extending the same protection. |
| Independent Secretariat and Expenditure | The court made an appeal to the Union of India and Parliament to consider providing the Election Commission with an independent secretariat and charging its expenditure on the Consolidated Fund of India. |
Authorities
The Supreme Court referenced several key authorities in its judgment, including:
- ✓ S.S. Dhanoa v. Union of India, (1991) 3 SCC 567 (Supreme Court of India)
- ✓ T.N. Seshan, Chief Election Commissioner of India v. Union of India and others, (1995) 4 SCC 611 (Supreme Court of India)
- ✓ I. C. Golak Nath and Others v. State of Punjab and Another, AIR 1967 SC 1643 (Supreme Court of India)
- ✓ Bandhua Mukti Morcha v. Union of India and Others, (1984) 3 SCC 161 (Supreme Court of India)
- ✓ His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another, (1973) 4 SCC 225 (Supreme Court of India)
- ✓ Dr. Jaishri Laxmanrao Patil v. Chief Minister and others, (2021) 8 SCC 1 (Supreme Court of India)
- ✓ Samsher Singh v. State of Punjab and Another, (1974) 2 SCC 831 (Supreme Court of India)
- ✓ Supreme Court Advocates-on-Record Association and Another vs. Union of India, (2016) 5 SCC 1 (Supreme Court of India)
- ✓ Supreme Court Advocates-on-Record Association and Others vs. Union of India, (1993) 4 SCC 441 (Supreme Court of India)
- ✓ Prakash Singh and Others vs. Union of India and Others, (2006) 8 SCC 1 (Supreme Court of India)
- ✓ Vineet Narain and Others vs. Union of India and Another, (1998) 1 SCC 226 (Supreme Court of India)
- ✓ Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739 (Supreme Court of India)
- ✓ N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 (Supreme Court of India)
- ✓ Jyoti Basu and Others. Debi Ghosal and Others, 1982 (1) SCC 691 (Supreme Court of India)
- ✓ Mohan Lal Tripathi vs. District Magistrate, Raibraally and others, (1992) 4 SCC 80 (Supreme Court of India)
- ✓ Rama Kant Pandey v. Union of India, (1993) 2 SCC 438 (Supreme Court of India)
- ✓ Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others, (1997) 6 SCC 1 (Supreme Court of India)
- ✓ Shyamdeo Pd. Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46 (Supreme Court of India)
- ✓ Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294 (Supreme Court of India)
- ✓ People’s Union for civil Liberties (PUCL) and Another vs. Union of India and Another, (2003) 4 SCC 399 (Supreme Court of India)
- ✓ Kuldip Nayar and Others v. Union of India and Others, (2006) 7 SCC 1 (Supreme Court of India)
- ✓ K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 (Supreme Court of India)
- ✓ People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1 (Supreme Court of India)
- ✓ Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 (Supreme Court of India)
- ✓ Digvijay Mote v. Union of India and Others, (1993) 4 SCC 175 (Supreme Court of India)
- ✓ All Party Hill Leaders Conference Shillong v. Captain W.A. Sangma and Others, (1977) 4 SCC 161 (Supreme Court of India)
- ✓ Kanhiya Lal Omar v. R.K. Trivedi and Others, (1985) 4 SCC 628 (Supreme Court of India)
- ✓ Election Commission of India v. State of T.N and Others, (1995) Suppl. 3 SCC 379 (Supreme Court of India)
- ✓ Election Commission of India v. State Bank of India Staff Association Local Head Office Unit, Patna and Others, (1995) suppl.2 SCC 13 (Supreme Court of India)
- ✓ Common Cause (A Registered Society) v. Union of India and Others, (1996) 2 SCC 752 (Supreme Court of India)
- ✓ Election Commission of India v. Ashok Kumar and Others, (2000) 8 SCC 216 (Supreme Court of India)
- ✓ Desiya Murpokku Dravida Kazhagam (DMDK) v. Election Commission of India and Others, (2012) 7 SCC 340 (Supreme Court of India)
- ✓ Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, (2014) 7 SCC 99 (Supreme Court of India)
- ✓ State of T.N. v. State of Kerala and another, (2014) 12 SCC 696 (Supreme Court of India)
- ✓ Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another, (2008) 1 SCC 683 (Supreme Court of India)
- ✓ Asif Hameed v. State of J & K, (1989) Suppl.2 SCC 364 (Supreme Court of India)
- ✓ State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586 (Supreme Court of India)
- ✓ B.R. Kapur v. State of T.N. and Another, (2001) 7 SCC 231 (Supreme Court of India)
- ✓ B.P. Singhal v. Union of India and Another, (2010) 6 SCC 331 (Supreme Court of India)
- ✓ Chief Election Commissioner and Others v. Jan Chaukidar (Peoples Watch) and Others, (2013) 7 SCC 507 (Supreme Court of India)
- ✓ Edapaddi K. Palaniswami v. T.T.V. Dhinakaran and others, (2019) 18 SCC 219 (Supreme Court of India)
- ✓ Subramanian Swamy v. Election Commission of India through its Secretary, (2008) 14 SCC 318 (Supreme Court of India)
- ✓ Manoj Narula v. Union of India, (2014) 9 SCC 1 (Supreme Court of India)
- ✓ Bhanumati and others v. State of U.P. through its Principal Secretary and others, (2010) 12 SCC 1 (Supreme Court of India)
- ✓ Kalpana Mehta and others v. Union of India and others, (2018) 7 SCC 1 (Supreme Court of India)
- ✓ Public Interest Foundation and others v. Union of India and others, (2019) 3 SCC 224 (Supreme Court of India)
- ✓ Abhiram Singh v. C.D. Commachen (DEAD) by Legal Representatives and others, (2017) 2 SCC 629 (Supreme Court of India)
- ✓ Shri Sadiq Ali and another v. Election Commission of India, New Delhi and others, (1972) 4 SCC 664 (Supreme Court of India)
- ✓ Janata Dal (Samajwadi) v. Election Commission of India, (1996 (1) SCC 235 (Supreme Court of India)
- ✓ Indian National Congress (I) v. Institute of Social Welfare and others, (2002) 5 SCC 685 (Supreme Court of India)
- ✓ State of Punjab v. Salil Sabhlok and Others, (2013) 5 SCC 1 (Supreme Court of India)
The court also referred to the following books:
- ✓ ‘Framing of India’s Constitution’ by B. Shivarao
- ✓ “The Nature of the Judicial Process” by Benjamin N. Cardozo
- ✓ “Judicial Activism” in India by SP Sathe
- ✓ “Judicial Activism, Authority, Principles and Policy in The Judicial Method” by Hon’ble Justice Michael Kirby
Judgment
| Submission by Parties | Court’s Treatment |
|---|---|
| Petitioners’ submission for a neutral selection committee | The Court upheld the need for a neutral selection committee, mandating a committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India. |
| Petitioners’ submission for extending protection to Election Commissioners | The Court rejected the plea for extending the same protection to the Election Commissioners as the Chief Election Commissioner, but suggested that Parliament may consider extending the same protection. |
| Petitioners’ submission for an independent secretariat and charged expenditure | The Court made an appeal to the Union of India and Parliament to consider providing the Election Commission with an independent secretariat and charging its expenditure on the Consolidated Fund of India. |
| Respondents’ submission that the executive has the sole authority to appoint ECs | The Court rejected this argument, holding that the executive’s sole authority compromises the independence of the Election Commission. |
| Respondents’ submission that the right to vote is a statutory right | The Court rejected this argument, holding that the right to vote is a constitutional right, and a facet of the fundamental right under Article 19(1)(a). |
How each authority was viewed by the Court?
- ✓ S.S. Dhanoa v. Union of India [CITATION]: The court disagreed with certain parts of the judgment, particularly regarding the status of Election Commissioners.
- ✓ T.N. Seshan, Chief Election Commissioner of India v. Union of India [CITATION]: The court relied on this judgment to highlight the need for an independent Election Commission.
- ✓ Vineet Narain and Others vs. Union of India [CITATION]: The court invoked this judgment as a precedent for issuing guidelines to fill legislative gaps.
- ✓ Lakshmi Kant Pandey v. Union of India [CITATION]: The court referred to this case as a precedent for laying down guidelines in the absence of legislation.
- ✓ Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others [CITATION]: The court relied on this case to highlight its power to intervene to ensure justice.
- ✓ Supreme Court Advocates-on-Record Association and others v. Union of India [CITATION]: The court referred to this case for the need to have an independent judiciary.
- ✓ Mohinder Singh Gill v. Chief Election Commissioner [CITATION]: The court relied on this case to highlight the plenary powers of the Election Commission.
- ✓ Public Interest Foundation and others v. Union of India and others [CITATION]: The court referred to this case to highlight the importance of the right of the voter to know the antecedents of the candidates.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily driven by the need to uphold the principles of democracy, transparency, and the rule of law. The court emphasized that the Election Commission, as an independent constitutional body, must be free from any governmental influence to ensure the fairness of elections. The court also noted the absence of a law by Parliament to regulate the appointment of Election Commissioners as a crucial factor necessitating judicial intervention.
| Reason | Percentage |
|---|---|
| Need for independent Election Commission | 30% |
| Constitutional mandate for free and fair elections | 25% |
| Lack of a law by Parliament | 20% |
| Influence of executive on appointments | 15% |
| Importance of transparency and accountability | 10% |
| Category | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Logical Reasoning:
Issue: Does the current appointment process for Election Commissioners ensure independence?
Analysis: Existing system relies solely on executive discretion, potentially compromising impartiality.
Conclusion: Need for an independent committee to advise on appointments.
Action: Mandate a committee comprising the Prime Minister, Leader of the Opposition, and Chief Justice of India.
The Court considered alternative interpretations of Article 324(2), particularly regarding the executive’s power. However, it ultimately concluded that the absence of a law by Parliament and the need to ensure the Election Commission’s independence necessitated the current judgment.
The decision is intended to be a temporary measure until Parliament enacts a law to govern the appointment process. It seeks to balance the powers of the executive, legislature, and judiciary while safeguarding the democratic process.
The majority opinion was delivered by Justice K.M. Joseph, with a concurring opinion by Justice Ajay Rastogi. The judgment emphasized that the Election Commission’s independence is vital for the health of the nation’s democracy.
“The Election Commission is an institution of central importance and enjoys far -reaching powers and the greater the power to affect others’ right or liabilities the more necessary the need to hear.”
“Democracy is not just the law of rules and legislative supremacy; it is a multi-dimensional concept. It requires recognition of both the power of the majority and the limitations on that power.”
“The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in this behalf by Parliament, be made by the President.”
Key Takeaways
- ✓ The Supreme Court’s decision mandates a new appointment process for Election Commissioners, ensuring greater transparency and independence.
- ✓ The judgment highlights the importance of an independent Election Commission for the functioning of a healthy democracy.
- ✓ The ruling emphasizes the need for Parliament to enact a law governing the appointment of Election Commissioners.
- ✓ The decision serves as a reminder of the judiciary’s role in safeguarding constitutional values and principles.
- ✓ The judgment has the potential to significantly impact the future of elections in India by ensuring a more neutral and impartial electoral body.
Directions
The Supreme Court issued the following directions:
-
✓ The appointment of the Chief Election Commissioner and Election Commissioners shall be made by the President of India on the advice of a committee consisting of:
- – The Prime Minister
- – The Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party)
- – The Chief Justice of India
- ✓ This direction will remain in effect until Parliament enacts a law to govern the appointment process.
- ✓ The court urged the Union of India and Parliament to consider providing the Election Commission with an independent secretariat and charging its expenditure on the Consolidated Fund of India.
Impact
The Supreme Court’s judgment is expected to have a significant impact on the Election Commission and the electoral process in India. Some of the key impacts include:
- ✓ Enhanced Independence: The new appointment process will likely enhance the independence of the Election Commission, reducing the potential for executive influence.
- ✓ Increased Transparency: The involvement of the Leader of the Opposition and the Chief Justice of India in the appointment process will bring greater transparency and accountability.
- ✓ Strengthened Democracy: By ensuring a more neutral and impartial electoral body, the judgment is expected to strengthen the democratic foundations of the nation.
- ✓ Potential for Future Reforms: The ruling may prompt Parliament to enact comprehensive electoral reforms, further bolstering the integrity of the electoral process.
- ✓ Precedent Setting: This judgment serves as an example of judicial intervention to safeguard constitutional principles and values in the absence of legislative action.
Conclusion
The Supreme Court’s judgment in Anoop Baranwal vs. Union of India is a landmark decision that addresses a critical issue concerning the independence of the Election Commission of India. By mandating a new appointment process involving a committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India, the court has taken a significant step towards ensuring a more transparent, impartial, and independent electoral body.
This ruling underscores the importance of maintaining the separation of powers and the judiciary’s role in safeguarding constitutional values and principles. It also serves as a reminder of the need for Parliament to enact laws that uphold the spirit of the Constitution and ensure the integrity of the democratic process. The judgment is expected to have a lasting impact on the Election Commission and the electoral landscape of India, promoting a more robust and credible democratic system.
The case is a testament to the judiciary’s commitment to upholding the sanctity of the electoral process and ensuring that the Election Commission remains a bastion of democracy, free from undue influence. It is a step forward in strengthening India’s democratic institutions and ensuring the fairness and integrity of its elections.