Scroll Top


The standoff between the two organs i.e., the executive and the judiciary of the Indian nation has intensified while the Apex Court hears a bunch of petitions culminating in Anoop Baranwal v


The standoff between the two organs i.e., the executive and the judiciary of the Indian nation has intensified while the Apex Court hears a bunch of petitions culminating in Anoop Baranwal v Union of India seeking the establishment of a collegium for the selection of members of the Election Commission. The Prime Minister, the leader of the opposition in Lok Sabha, and the Chief Justice of India will be a part of the proposed collegium.


A multi-member body, the Election Commission of India enjoys a constitutional status and is charged with the duty of conducting periodic, free, and fair elections. It was established in 1950 to establish democracy in the country.  Article 324 of the Constitution recognizes the authority of the Commission to supervise, direct and control the elections. It is composed of the “Chief Election Commissioner and such other Election Commissioners as the President may, from time to time, deem fit”. It is also responsible for preparing the poll book and regulating elections pertaining to the Parliament, and legislatures of each state in addition to Presidential and Vice-Presidential elections. The crucial factor for our purposes is the manner in which an individual is selected for being assigned the office of the Chief Election Commissioner and the Election Commissioners. The Constitution authorizes the President for the said purpose. 


 Article 74(1) requires compliance of the President with what the PM and Council of Ministers have to say and it follows that the executive organ becomes the sole appointing authority concerning the commission. The petitioners in the case that has come to be known as Anoop Baranwal v Union of India argue that this power of the executive hampers transparency and independence in the commission. Therefore, they demand a collegium-like body that will be responsible for appointing the CEC and ECs. The 255th Report of the Law Commission suggested that while making the appointments, the President should consult a collegium consisting of members as aforementioned. However, the Union government is claiming that fairness cannot be guaranteed merely by introducing a judicial member in the appointment process. Furthermore, the Solicitor General of India, Tushar Mehta argued that the idea of introducing a system similar to the collegium is opposed to the idea of separation of powers, and if allowed, it would amount to subverting the constitutional scheme.


While the Supreme Court hears Baranwal’s Case, the executive organ has once again come under its scrutiny for the lightning speed with which IAS officer Arun Goel was appointed as Election Commissioner. The scrutiny was justified as the office of the Commissioner was lying vacant since May 15 when Rajiv Kumar was appointed as the Chief Election Commissioner. The vacancy could have been filled earlier; however, it was done only when the Supreme Court began to hear the petitions. One cannot help but wonder that the executive perceived a threat to its authority which is why it cleared the appointment of the bureaucrat within twenty-four hours.


Although the Constitution dedicates separate provisions for the legislature, executive, and judiciary of the state, the theory of separation of powers does not find explicit mention therein. However, certain judicial pronouncements over the years suggest that our Constitution impliedly admits the presence of separation of powers. In Ram Jawaya Kapur v State of Punjab, the SC stated, “The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.”

I humbly differ from the observations made by the Solicitor General. In the modern era, accurate demarcation of powers possessed by the three organs is neither possible nor desirable. In another case, the Apex court has made the following observation, “In the Indian Constitution, there is a separation of powers in a broad sense only. A rigid separation of powers as under the U.S. Constitution or the Australian Constitution does not apply to India.” One organ exceeding its jurisdiction and entering into the sphere of another is indispensable to ensure that the organs do not run amok with the powers conferred upon them. The system of checks and balances vouches for the present argument that is focused on constituting a collegium for the appointment of concerned members to the Commission. In other words, it can be said that if the SC announces its decision in favour of the petitioners, it would enforce the system of checks and balances. The judicial organ, in its role as the ultimate guardian of our rights, can exercise a healthy encroachment in the executive sphere.

 Additionally, a free and fair election is a cardinal tenet of  good democracy and is recognized as part of the basic structure after the Supreme Court’s verdict in the Election Case. It naturally follows that the elections will be fair only if the body responsible for holding those elections is composed of impartial members with an objective lens. Fairness would be a distant dream if the Commission is composed of “yes-men”, as the Supreme Court has opined.


The discord between the two organs can be reduced by ensuring minimum intervention by the judiciary into the executive domain. This can be accomplished if the Parliament enacts a comprehensive law respecting the qualifications and appointment of the members of the Commission. It would promote transparency and independence in the same as President would be bound by such a law while making the appointments, as required by Article 324(2). It would naturally make the judicial organ less apprehensive of the executive actions, thereby maintaining equilibrium between the two.  


To ensure a harmonious relationship between the three organs of the state, respect by one for the boundaries of another is, indeed, important. However, with the emergence of the welfare state, the executive has come to enjoy vast powers which, if not regulated and supervised, could result in a state of confusion and disorder. Further, the Preamble to the Constitution sets India on a democratic path and the judiciary plays a major role in keeping the country steadfast on it. The interferences, wherever and whenever genuine, as in the case of appointments to the Election Commission are justly carried out.

Further, a law regulating the manner of assigning office to the Commissioners is the need of the hour to reduce the tendency of successive governments to appoint pawns in place of ethical and sincere officers. 

Author(s) Name: Tanzeela Hassan