Tyranny of the elected: Supreme Court on failure of governments to make law on independent Election Commission

The Supreme Court on Thursday lamented the failure of successive governments in India to pass a law to ensure the independent functioning the Election Commission of India (ECI).

A Bench of Justices Dipankar Datta and Satish Chandra Sharma asked advocate Prashant Bhushan, appearing for petitioners Association for Democratic Reforms (ADR),

"Why did parliament not make a law before Baranwal (judgment)?"

The Court was referring to its 2023 judgment in  Anoop Baranwal v. Union of India and ors, which allows Chief Justice of India (CJI) in panel selecting Election Commissioners.

In response to the Court's query, Bhushan said that every government took advantage of the absence of law to ensure ECI's independence.

"Because every government took advantage of it. So they can misuse the appointment. When people were in opposition, they were clamouring that there should be an independent body, but when they came to power, they stopped bothering about it."

At this point, Justice Datta observed,

"I am reminded of a parliamentarian saying tyranny of the unelected. This should be equated with tyranny of the elected."

Justice Sharma added,

"Tyranny of the majority."

Justice Datta noted,

"Whoever comes to power is doing the same thing. It is unfortunate for the country. I saw a video of the BBC on Dr. Ambedkar. Within 3 years of the Constitution, he said that democracy is not working in this country."

Bhushan then said,

"There are many problems. This Court took great pains to set things right. When in opposition they are talking about it, when they came to power they forgot about it."

The Court agreed, saying,

"Very unfortunate."

The plea before the Court has challenged the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The law allows appointment to the posts of CEC and Election Commissioners by a Selection Committee comprising the Prime Minister (PM), a Union Cabinet Minister and the Leader of Opposition in Lok Sabha.

As per the petitioner, the provisions of the enactment are violative of the principle of free and fair elections since it does not provide an "independent mechanism" for appointment of the members of the ECI.

Pertinently, according to the plea, the law is in violation of Supreme Court’s judgment in the case of Anoop Baranwal v. Union of India and ors as it excludes the CJI from the process of appointment of the members of the Election Commission of India.

By doing so, the judgment of the Supreme Court stands diluted as the Prime Minister and his nominee will always be "the deciding factor" in the appointments, the petitioner stressed.

At the outset of today's hearing, the Court said that mechanism laid down by it in the Anoop Baranwal judgment was a stop gap arrangement till the parliament framed a law.

"Anoop Baranwal was to operate in the interregnum. Till parliament frames the law. Is there any observation in the judgment that when parliament frames the law, our observations must be kept in mind? They could have said so. The CJI being in the committee was operational only when there was a vacuum…"

Senior Advocate Vijay Hansaria, appearing for the the petitioners, replied,

"But that is the constitutional scheme...I am not saying that Lordships should frame a law. But when a law is framed, Your Lordships checks whether it follows constitutional norms. Baranwal doesn’t just speak about composition. It said this is what the constitutional requirement is."

Senior Advocate Shadan Farasat, also appearing for the petitioners, pointed out,

"When this Bill was passed, 141 opposition MPs were under suspension."

The Court then moved on to the prayers in the petitions.

"There is no specific pleading on invalidity of Sections 7 and 8 of the Act. In which writ petition do we find Mr. Farasat’s claim that x number of members were not present?"

Farasat replied that it was there in his pleadings. Advocate Prashant Bhushan added that the claim was in his petition as well.

The Court then pointed out that the verification part in Bhushan's petition was blank. It said,

"This is how petitions are filed? One petition in Mr. Hansaria there are no pleadings. This is not the way. This we have seen only in the Supreme Court. This has to be cured. We are not saying we will not entertain based on this but you will have to cure."

Bhushan assured the Court that the defect would be cured today itself.

When Hansaria took the Court through another judgment on the composition of the selection committee, the Court said,

"There is no observation in the judgment that the law is to be framed in a particular manner. If the five-judge bench (in Anoop Baranwal) had gone to the extent of saying that while framing the law, parliament should keep our judgment in mind. Even that is not there."

Hansaria replied,

"The constitutional requirement is an independent Election Commission. Earlier, the President was to appoint on the advise of the Council of Ministers. Now it’s only the Prime Minister...now the Council of Ministers also goes. Is it a collegium?"

The Court then said,

"Section 6 is search committee. The requirement of law is not that search committee will forward all names to the selection committee. But you said 200 names were sent etc."

Hansaria responded,

"200 names were forwarded by the Secretary of the Legislative Department, saying selection committee has not finalised the names. On the same day when the meeting took place, the search committee forwarded 6 names including Gyanesh Kumar and one other gentleman. So it means they have done screening and on the same day the meeting is held."

On this, the Court observed,

"We can only say we wish this speed is maintained for the appointment of judges. Election commissioners are at par with Supreme Court judges."

Hansaria suggested that the government rushed the selection of two new Election Commissioners on March 14, 2024, specifically because they knew the Supreme Court was scheduled to hear a plea for a stay on such appointments the very next day (March 15).

The Court went on to question whether the process was rushed.

"Can you attribute any motive without saying that the Union knew that 15th would be when the matter would come up? You are suggesting that they had knowledge that 15th, the stay application would come up, to frustrate that they conducted it on 14th March. When you are raising this point, you need to satisfy us that Union also knew that 15th is the day and that is why on 9th of March, it was brought forward to 14th."

Bhushan then commenced his arguments. He argued,

"Majority of the opposition members were suspended during the debate of this particular law. Mr. Owaisi (Lok Sabha Member of Parliament) said this law does not conform to the directions issued in Anoop Baranwal case. The government’s response just says Anoop Baranwal asks us to frame a law and hence we have framed a law. And then it was passed by a voice vote."

The Court was told that 95 opposition members were suspended at the time. Bhushan added,

"It was a farce. There was no meaningful debate. The minister did not answer the substantive objection raised by Mr. Owaisi."

He went on to argue,

"...independence is not ensured only because removal can be done by impeachment. To ensure independence, you also have to ensure that the appointment is not controlled by the ruling party. The government is clearly a stakeholder in elections. You bring a law that effectively nullifies the foundation of the Anoop Baranwal judgment...even if they brought a constitutional amendment to nullify it, it would still be violative of basic structure. In NJAC, the amendment was struck down because it was violative of basic structure. Here, they clearly have dominant control. This case is squarely covered by at least 5 Constitution Bench judgments."

On May 6, the Court had questioned the petitioner, Congress leader Dr Jaya Thakur, on whether it can direct parliament to frame a law directing inclusion of the CJI. 

"It is a prerogative of the parliament to make the law. Courts cannot direct the parliament to make a law," the Bench had remarked.

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