A welcome ruling

On March 2, the Supreme Court made a landmark ruling regarding the appointment of the Chief Election Commissioner (CEC) and elections commissioners (ECs) in India. As per the current process, the Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM. A five-judge bench of the Supreme Court unanimously ruled that a High-Power Committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs). What the apex court ruled is the need for a collegium that has been a long pending demand made by eminent jurists and former ECI officials consisting of the Prime Minister, the Leader of the Opposition and Chief Justice of India. According to the verdict of the Supreme Court : “The appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha, and in case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength, and the Chief Justice of India,” the verdict states. Although the SC ruling has been and should be welcomed by all, Article 324(2) however implies that it is the prerogative of the President of India(acting on the advice of the prime minister and the council of ministers) who decides and appoints the ECI. The government argued that “in the absence of such a law, the President has the constitutional power.” The government has essentially asked the court to exhibit judicial restraint. The crux of the challenge is that since there is no law made by Parliament on this issue, the Court must step in to fill the “constitutional vacuum.” This examination also leads to the larger question of separation of powers and if the judiciary is overstepping its role in filling this gap in the law. What was the challenge before the Court and why did it radically alter the process of appointing Election Commissioner. In 2015, a public interest litigation was filed by Anoop Baranwal challenging the constitutional validity of the practice of the Centre appointing members of the Election Commission. In October 2018, a two-judge bench of the SC referred the case to a larger bench since it would require a close examination of Article 324 of the Constitution, which deals with the mandate of the Chief Election Commissioner. The SC had not debated this issue earlier. In September last year, a five-judge Constitution bench headed by Justice KM Joseph began hearing the case and almost a month later, the verdict was reserved. By severely restricting the hold and control of executive over EC, the new system ensures that the independence, autonomy and institutional integrity of the Commission is intact and well-protected. The Supreme Court verdict should be welcomed as a major step towards reform of the system that has made all the news for the wrong reasons.