Mitchell reported in the New York Times on 2 June 2009 about the fifteenth general elections in India that it certainly is the biggest show on Earth. It is a tribute to a vibrant democratic spirit, in which 700 million or more citizens participate, playing their role in steering their old civilisation into the future. That is even more astounding as it is done in the midst of turbulent and aggressive Pakistan, China, and Burma.’
The rationale behind an independent Election Commission was the Constituent Assembly’s concern that the election machinery should be beyond government control, and Article 324 of the Constitution of India carries out this role. The control and superintendence of all the elections to the Central and State Legislatures are therefore transferred to a body called the Election Commission. Article 324(2) states that the Election Commission shall be composed of the Chief Election Commissioner and such other Election Commissioners as fixed by the President. The President shall appoint the Chief Election Commissioner (CEC) and other Election Commissioners. If, however, any law is made by the Parliament with respect to such appointments, then these appointments will be subject to the provisions of those laws.
A Constitution Bench of the Supreme Court decided in 2003 that the ECI, which has been charged with the constitutional responsibility of conducting fair and free elections, is also a part of the same basic structure of the Constitution.
FACTS OF THE CASE
A PIL was filed by Anoop Baranwal in January 2015 contending that the prevailing system for appointment of the CEC and the Election Commissioners is unconstitutional. Such appointments to the Election Commission of India (ECI) are made by the President on the recommendation made by the Prime Minister, even though Article 324 specifically places an expectation upon the Parliament to draft a relevant law. The petitioner argued the necessity of a just, fair and transparent method of selecting the members of the Election Commission. A few similar petitions filed by Ashwani Kumar Upadhyay and Association for Democratic Reforms, etc. were also clubbed to this matter and decided in conjunction.
- Whether the right to equality violated by the current process for appointments to ECI?
- Whether the right to fair and free elections is violated by the current process for appointments to ECI?
The contention of the petitioners was that in order to ensure free and fair elections, the Election Commission’s independence is vital. They stated that free and fair elections are crucial to democracy and are a basic structure of the Constitution. The possibility that the ruling party’s biases may reflect in appointments of the CEC and ECs was argued by the petitioners. The petitioners based their case on several reports including that of the Central Law Commission which has recommended the constitution of a collegium comprised of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. On the interpretation of Article 324(2), the Supreme Court stated that the Article mandates the introduction of a law to prescribe the procedure of appointment.
It was argued that appointing members of the ECI exclusively on the advice of the Union’s law-making executive leads to arbitrariness and contravenes Article 14 of the Constitution and that as with other constitutional and legal authorities including Supreme Court and High Court Judges, the Chief Vigilance Commissioner, Director of Central Bureau of Investigation, Lokpal, etc., such appointments should be made with greater transparency, scrutiny, accountability and stability.
Among a plethora of other judgments, the Supreme Court’s judgments in Vineet Narain v. Union of India and Vishaka v. State of Rajasthan were referred by the petitioner where the Supreme Court had issued guidelines regarding the process of appointment of Chief Vigilance Commissioner and Director of CBI and guidelines for dealing with sexual harassment complaints, respectively.
Pleading for separation of powers, the Union Government contended that whether there is a legislative vacuum that needs to be filled was a matter for parliamentary debate. Reliance was placed on Samsher Singh v. State of Punjab and Another and T.N. Seshan, Chief Election Commissioner of India v. Union of India and others to argue that Article 324(2) does not impose a duty upon the Parliament to legislate and that the President has the authority to appoint.
It was contended that in these matters, judicial intervention would infringe upon the delicate balance of separation of powers between the Legislature, the Executive and the Judiciary. The Union argued that the current cases appear to be driven by a utopian ideal as opposed to any apparent vacuum.
The Supreme Court did not issue a mandamus to the Government for the enactment of a law under Article 324(2), as demanded by the petitioners, however, it expressed its concern regarding the lack of statutory provisions for the appointment of members of the ECI. A decision was finally made by the Constitution Bench of the Supreme Court to alter the process of appointments to the Election Commission in order to secure their independence. It was directed that a committee comprising the Prime Minister, the Leader of the Opposition in the Parliament and the Chief Justice of India be created to make recommendations and advise the President regarding the Election Commission appointments until the enactment of a separate law on this subject.
Regarding the term and the conditions of service of the Election Commissioners and the Regional Commissioners, the Court directed that it was to be as stipulated by the Rule, but subject to any law enacted by the Parliament. Regarding the matter of providing an independent Secretariat, the Court observed that a permanent Secretariat is desperately needed and the expenditure for such Secretariat should be charged to the Consolidated Fund of India. The Supreme Court appealed to the Union to consider bringing in the necessary changes in this regard, for the sake of true independence of the Election Commission.
The edifice of democracy rests on the citizens’ freedom to decide the fate of the ruling government, as well as the citizen’s faith in the democratic processes, which is ensured by holding free and impartial elections through an independent and neutral agency. The remarkable wisdom and foresight of the founding fathers ensured the formation of an instrument that has stood the test of time as a powerful watchdog of democracy.
Dr S.Y. Quraishi, a former Chief Election Commissioner, in his book An Undocumented Wonder: The Making of the Great Indian Election, wrote in 2014 that two major reforms were needed to enhance the Election Commission’s independence— “(a) the Commission’s budget should come directly from the Consolidated Fund of India, as in the case of the CAG and the Supreme Court; and (b) an independent secretariat on the model of the secretariats of the Rajya Sabha, the Lok Sabha and the Supreme Court Registry should be appointed for the Commission.” Through the present case of Anoop Baranwal v. Union of India, these reforms have successfully been put in place for better functioning of the Commission, giving great symbolic value in public perception. Therefore, the Commission’s authority and respect today stem, significantly, from the Supreme Court’s benevolent interpretation of the provisions in the Constitution and the laws associated with elections and the Election Commission.
Author(s) Name: Aneequa Ahmed (University of Calcutta)
 V. Mitchell, The New York Times (New York, 2 June 2009)
 B.R. Ambedkar, Charman of the Drafting Committee of the Constituent Assembly, 15th June, 1949.
 The Constitution of India, Article 324.
 In Re Special Reference No. 1 of 2002, AIR 2003 SC 87
 Anoop Baranwal vs. Union of India, (Writ Petitions Civil Case no. 104/2015)
 Vineet Narain & Ors. Vs Union of India & Anr. (1997) 1 SCC 226
 Vishaka & Ors. Vs. State of Rajasthan & Ors. (1997) 6 SCC 241
 Samsher Singh v. State of Punjab& Anr. (1974) 2 SCC 831
 T.N. Seshan, Chief Election Commissioner of India v. Union of India & Ors. (1995) 4 SCC 611
 Dr S.Y. Quraishi, An Undocumented Wonder: The Making of the Great Indian Election (Rupa Publications India Pvt. Ltd. 2014), page 361
 (Writ Petitions Civil Case no. 104/2015)