Decoding the Supreme Court’s Election Commission Judgment – II: On the Separation of Powers [Guest Post]

[This is a guest post by Rushil Batra. Part One of the series can be found here.]

---

On 2^nd March 2023, a constitutional bench of the Supreme Court handed down its verdict in the case of Anoop Baranwal v Union of India. This was a result of numerous petitions being filed in the apex court with regard to how Election Commissioners are appointed in the absence of any law made by parliament under Article 324(2) of the Constitution. In the absence of any law, according to the Transaction of Business Rules, the Union essentially decided whom to appoint as the Election Commissioners – which was the ultimate subject matter of dispute in this case.

There were two judgements rendered in the case. One by Joseph J. speaking for the majority and one by Rastogi J. who was concurring with Joseph with some additional reasons/conclusions. All five judges were unanimous on the question of appointments of Election Commissioners and held that instead of the Union making the appointments, a committee consisting of the Prime Minister, Leader of Opposition, and the Chief Justice of India shall be making the appointments as a stopgap measure – until parliament makes a law in this regard.

 This essay aims to defend the court’s conclusion against the critique that the judgement does not value the principle of separation of powers and also analyses Rastogi J.’s opinion. Hence, the essay first, highlights, why the conclusion reached by the court is not in conflict with the idea of separation of powers using Khaitan’s framework of fourth-branch institutions. Second, I argue that while the conclusion reached by Rastogi J is the right one, the reasoning employed by him to reach that conclusion is puzzling. Lastly, I conclude by highlighting that while we have seen this scheme of composition (PM, LoP and CJI) before, it has not turned out to be very successful and it remains to be seen whether the state of the ECI remains the same, improves or worsens.

Election Commission as a Fourth Branch Institution

It is clear from the judgement that the Union vehemently opposed the petition and primarily did so on the ground that it violates the principle of separation of powers i.e., the appointment of Election Commissioners is the sole prerogative of the executive – at least until Parliament brings a law to the contrary. This contention becomes increasingly important, especially in light of the rise of Fourth Branch Institutions and the reasons for their existence.

One of the changes in the more recent constitutions is the rise of the Fourth Branch Institutions. Most scholars attribute their rise to the idea of democratic distrust, conflict of interest and/or expertise/capacity. Some Constitutions have even explicitly recognized Fourth Branch Institutions as a distinct chapter in their Constitutions. For example, Chapter 9 of the South African Constitution lists down various authorities to protect constitutional democracy which are arguably Fourth Branch institutions.

So, the question of whether the Court should – normatively speaking – interfere in cases of a legislative vacuum has to be answered in the context of the institution you are talking about. Why do we need institutions like the EC? The EC has been characterized by many as a Fourth Branch Institution – tasked with the mandate of conducting free and fair elections throughout the country. Tarunabh Khaitan identifies three design objectives that are ideal for a body to be a successful fourth-branch institution – namely expertise, accountability, and independence. The case at hand primarily focuses on Independence which is inextricably linked with the appointment process.

Now, every Constitution seeks to protect some long-term values and norms. However not all governments might be sympathetic to the cause of preserving constitutional norms. The ‘constitutional norms’ can thus be categorized as either self-enforcing norms or non-self-enforcing. Self-enforcing constitutional norms are norms that enforce themselves for which there is no need for a Fourth Branch Institution or for the protection of that norm. Take, for example law and order: because the state wants to have a monopoly on violence and power, so it naturally has an incentive to preserve this norm. On the other hand, something like the idea of democracy is a self-defeating system i.e., the party in power would always try to remain in power and hence has no incentive to promote democracy which is a non-self-enforcing norm. A norm requires an institutional guarantee (which is achieved by an impartial and independent Fourth Branch Institution) if it’s not a self-imposing norm.

Now take the example of the appointment of Election Commissioners. To use an analogy, assume that there is a sexual harassment allegation against the Chief Justice of India. A committee is formed to investigate it, but that committee is headed by those who are also appointed by the Chief Justice himself– now while that may not sound egregiously wrong given the state of affairs of the SCI – that is illustrative of the issue at hand. The government of the day will necessarily have the incentive to ensure that elections are not fair and freedom of the EC is not maintained if that is what it would take for it to remain in power. Therefore, this is a case of non-self-enforcing norms.

In the case of a non-self-enforcing norm, it is only natural that the rigid separation of powers that one might imagine otherwise cannot and should not be maintained – and rightfully so. While the argument of separation of powers in other contexts would be valid, it should not – as in this case – stop the Court from preserving the long-term institutional norm – the idea of free and fair elections. Hence, the critique that this judgement amounts to activism or judicial usurpation is misconceived – for in the case of a non-self-enforcing norm, judicial activism -if one wants to call it that – is required to preserve the norm in the long run.

The Right to Vote as a Fundamental Right?

Rastogi J’s judgement is rather interesting for how it proceeds to reach its conclusion. He first clarifies for us how the writ petition is maintainable in the given case. The logic is that the right to vote is a fundamental right. That fundamental right can only be actualised if there are free and fair elections – which can be achieved only if the body conducting elections is impartial. In para 68-69 he goes onto says –

Therefore, the right to vote is not limited only to Article 326, but flows through Article 15, 17, 19, 21. Article 326 has to be read along with these provisions. We therefore declare the right to vote in direct elections as a fundamental right, subject to limitations laid down in Article 326… Now that we have held that the right to vote is not merely a constitutional right, but a component of Part III of the Constitution as well, it raises the level of scrutiny on the working of the Election Commission of India, which is responsible for conducting free and fair elections. As it is a question of constitutional as well as fundamental rights, this Court needs to ensure that the working of the Election Commission under Article 324 facilitates the protection of people’s voting rights.

This blog has earlier pointed out how, because of Article 326, the correct interpretation would be to categorize the right to vote as a fundamental right, as opposed to a mere statutory right. Notwithstanding that debate, the conclusion reached by Rastogi J is extremely convoluted reasoning at best.

The problem lies in not grounding the right to vote in Article 19/21 as was argued by the petitioners. How is the right to vote to flow from Article 17 i.e., protection against untouchability? It is also problematic because while Article 17 is of horizontal application Article 19 is not (before the ghost of Kaushal Kishore). Moreover, the reasonable restrictions laid down by these articles are different and it remains to be seen how this right will be interpreted. This is not to say that Articles cannot be read together, but that must be done sensibly i.e., one may read Article 21/19/14 together – as courts have done in the past – but to read Article 17 with Article 19 – as is done here – might be a problem for courts to adjudicate future claims.

The Position of the Election Commissioners vis-à-vis Chief Election Commissioner

In his conclusion, Rastogi J. differs from the Joseph J. and the majority and goes onto say –

It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India.

This is relevant in light of the jurisprudence on this issue. In Election Commission v Subramanium Swamy, the SC had held that all decisions of the Election Commission would be taken by a majority and that the CEC does not have a veto over any decision. If that is the case then all the government requires is the CEC’s recommendation to remove the other Election Commissioner(s). If the Election Commissioners together have 2 votes out of three and constitute a majority, then leaving their removal to the government of the day seems like a problematic proposition. It is also an open secret that when EC’s don’t toe the line, they can also be “persuaded” to resign, as was allegedly the case of Ashok Lavasa.

Conclusion

Therefore, in this essay, I have argued that the criticism being levelled against the judgement on grounds of separation of powers is misplaced since non-self-enforcing norms would necessarily require protection from the government of the day. Moreover, while Rastogi J reaches the same conclusion with respect to having a committee comprising of the PM, CJI and LoP as the majority, his reasoning is somewhat puzzling.. It remains to be seen whether this committee – which also appoints CBI and ED heads – is able to ensure independent appointments. While this three-member panel has not had the best track record, it remains to be seen how the EC will eventually function.