[This is a guest post by Utkarsh Rai.]
With the recent controversies over the process for the appointment of the Election Commissioner, it might be time to consider various models for independence of 4th branch, or guarantor institutions. In this regard, a possible model emerges from the arguments in the PJ Thomas case, that concerned the validity of appointments to the CVC, another 4th branch institution. In the history of the Court’s engagement with guarantor institutions (which the EC undoubtedly is), this judgement is unique because it saw the Court quashing the appointment of PJ Thomas, relying on the principle of institutional integrity. However, in this case, another argument brought forward by the petitioners (ADR, one of the petitioners in the EC petition as well) was regarding the interpretation of Section 4(1) of the then CVC Act, and to read the recommendation required by the High-Powered Committee to be unanimous (instead of by majority).
The argument of the petitioners was based on a purposive reading of the text, as well as the circumstances of the case, where the then Leader of Opposition Sushma Swaraj had already dissented over the appointment of Thomas, highlighting flaws in his candidature. However, the Court did not agree with the same. At this juncture, it is important to point out that the circumstances in the PJ Thomas judgement are very similar to our own, with respect to the dissent of the Leader of Oppositon with respect to the appointment. Further, the controversies over the appointment procedure for the Election Commissioner also reflect an impasse over different models regarding the composition of committees tasked with the appointment of persons to guarantor institutions in India. Roughly speaking, the two prominent models are:
- the procedure set down in the Anoop Baranwal judgement, which created a 3-member committee consisting of the PM, CJI and the Leader of Opposition.
- the procedure set down in legislation governing various 4th branch institutions, such as the CEC and the CVC.
At this juncture, it is pertinent to point out that neither model is perfect. However, in the current scenario, the main model that seems to have been articulated is for a return to the model set down by the Court in the Anoop Baranwal judgement (that is, a selection committee consisting of the Prime Minister, the Leader of Opposition, and the Chief Justice of India). This is understandable as such a suggestion has already been made by various committees, as well as the Law Commission in 2015. Not only this, a comparative overview will show that in other countries such as South Africa and South Korea, a Supreme Court justice is either on the appointment committee (South Africa) or is one of the 3 people that nominates individuals to the Election Commission. As such, the desire for the CJI to be on the committee is not surprising at all.
The Problems with the Anoop Baranwal Model
However, despite such arguments, I believe we must reflect more on the viability of such a model in India. In this regard, we must remember that the practice of including the CJI on the committee already exists for the appointment of individuals to certain positions, and it is not clear yet that such a practice has been better than alternatives. More importantly, it is also important to remember the controversies over post-judicial appointments in India, and the allegations surrounding the executive bias of the judiciary across different political eras. I do not bring these points up to endorse these claims, but rather to highlight the sorts of issues that are already affecting public perception of the judiciary, and the further partisan conflicts that the judiciary could get embroiled in if it is included in the committee for the appointment of the Election Commissioners. Further, it can be argued that the presence of the CJI on the Committee also puts the Court in an awkward position in the case of controversies regarding appointments, as past practise will attest to the Court’s ‘awkward’ handling of cases where it is required to review behavior by the CJI or other judges.
Decision-Making by Unanimity
This brings us to the second model. As is clear from the criticisms of the Bill and its provisions, the model is inadequate because it clearly gives a majority to the Executive. However, a close reading of the text shows that it leaves room for an interpretation in which the Committee, despite its composition, has to take decisions unanimously. In the PJ Thomas case, it was such a suggestion that the petitioners suggested reading into the case, based on a purposive reading of the statute. This was the suggestion that was rebutted by the Court in the PJ Thomas case. However, the text in the CEC Bill remains very similar to the text of the CVC Bill when the PJ Thomas case was adjudicated.
The only difference in the text between the CVC Bill and the CEC Bill is that the text of the CEC Bill explicitly allows the committee empowered to appoint the Commissioner to set its own procedure. This, along with the Section 7(2) of the Bill, which allows the Committee to decide regardless of a vacancy in the Committee, are the provisions that reflect legislative intent to entrench executive dominance in the Committee. An approach that the Court could take here is to interpret these provisions to require unanimity from the committee in decision-making. The Court will also have to strike down Section 7(2) of the Bill. To ensure that such a provision is not misused, the Court can also put in place a deadline for appointments by the committee after it sits down to choose an Election Commissioner (a problem that has already reared its head in such appointment committees that include the CJI). Such an interpretation is also plausible in the aftermath of the Anoop Baranwal judgement, where the logic of the Court’s judgement required setting up an appointments committee that was not dominated by the Executive.
In this regard, the Court can take inspiration from UK jurisprudence in this regard. In the UK, Section 3(1) of the Human Rights Act requires the Court to interpret legislation in a manner that is consistent with the Convention. This has led to the Court to ‘read down’ or ‘read in’ provisions that are Convention incompatible. As Kavanagh discussed in her article, this approach is now a part and parcel of the Court’s interpretation in such matters. A similar interpretive strategy could be followed in this case, and other cases of this nature. Further, in Para 55 of the PJ Thomas judgement, the Court stressed that all individuals in the committee must publicize their decisions and the rationale for the same, especially in the case of dissent. This should be required regardless of dissent, to ensure trans,parency and clarity regarding the reasons for the appointment of the Commissioners.
Final Reflections
The PJ Thomas case remains a landmark case in the history of guarantor institution litigation in India because of the Court’s articulation of the concept of institutional integrity, as well as its application of the concept to the specific facts of the case. Since the case, the jurisprudence on guarantor institutions has been further strengthened by the ruling of the Court in Anoop Baranwal. As the guarantor institution litigation in India has been piecemeal, a coherent theory might emerge upon a combined reading of the various cases, particularly Vineet Narain, where the Court highlighted the importance of the concept in the Indian context, PJ Thomas, where it articulated the importance of institutional integrity for these institutions, in their appointments and working, and Anoop Baranwal, where it combined various strands to ensure that these institutions have structural autonomy. Such a reading will also help us see how the holdings of Courts in older cases might get updated based on jurisprudence that has emerged in later cases, and that now represents the final view of the Court in such matters.
In this regard, it could be said that the holding of the PJ Thomas judgment, that did not require the 3-member committee in charge of appointing the CVC to make its decision with unanimous consent, is in need of re-evaluation, especially in light of the jurisprudence on the importance of the independence of such institutions articulated by the Court in the Anoop Baranwal case. Thus, the jurisprudence of the Court from the Anoop Baranwal case, specifically the Court’s emphasis on the importance of an election commission independent from executive dominance, should now anchor any future decisions the Court takes regarding how a 3-member committee might operate to prevent executive dominance. While this does not seem to have been the consensus from the different committees set up on this matter, I do believe this might be an acceptable middle-ground approach with multiple advantages.
First of all, as has been pointed out earlier, while putting the CJI in the committee seems like a great idea, it doesn’t seem to have been any better than existing ones in practise. By inserting the CJI into the committee, it places the Court in the centre of partisan conflict, but this time in a role that it is new to it. Further, it also places the Court in an awkward position with regards to the adjudication of any future controversies into appointments, as the CJI’s inclusion in the committee could create potential conflicts of interest that might affect the Court in its core duty as an adjudicator of such disputes, not to mention the awkward manner in which the Court has carried out enquiries in controversies that implicate its own members. Another point to consider here is the extent to which the Court’s decisions seem to have created a hierarchy in which the Court is superior relative to 4th branch institutions. The inclusion of the CJI on the committee might further entrench this hierarchy, which might not be the best approach. As such, while the idea of the inclusion of the CJI in the committee for the appointment of the Election Commissioner is not a bad idea, I believe the Court would be better served by not directly involving itself in the process, while requiring the selection to be based on unanimity, transparency, and timely consultation, values that are common threads that run through its judgements on guarantor institutions in India.
Constitutional Law and Philosophy 
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