Context: A five-judge bench of the SC unanimously ruled (in Anoop Baranwal v. Union of India) that a high-power committee consisting of the PM, LoP in Lok Sabha, and the CJI must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

What is the Background of the Case?

• In 2015, a PIL was filed challenging the constitutional validity of the practice of the Centre appointing members of the Election Commission.
• In 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.
• Article 324(2) reads: “The Election Commission shall consist of the CEC and such a number of other ECs, as the President may from time-to-time fix and their appointment shall, subject to any Parliamentary law made in that behalf, be made by the President.”
• 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.
• Two corollary issues that were also examined by the Court are whether the process of removal of the two ECs (by the President if the CEC recommends) must be the same as the CEC and regarding the funding of the Commission.
• As per the current process, the Law Ministry suggests a pool of suitable candidates to the PM for consideration and the President makes the appointment on the advice of the PM.

The Apex Court’s Verdict:

• The appointment of the CEC and the ECs shall be made by the President on the advice of a Committee consisting of the -
  • Prime Minister,
  • 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, and the
  • Chief Justice of India
• This will be subject to any law to be made by Parliament. This means that Parliament can undo the effect of the SC verdict by bringing in a new law on the issue.
• The Court’s verdict is based on a reading of the debates of the Constituent Assembly, when all the Members were of the clear view that elections must be conducted by an independent Commission.
• On the issue of the process of removal of ECs, the Court ruled that it cannot be the same as that of the process of removal of CEC.
  • The Constitution states that the CEC can be removed in a process similar to a judge on grounds of proven incapacity or misbehaviour.
  • Though there is equality otherwise between the CEC and ECs in various matters, we must bear in mind that Article 324 is inoperable without the CEC.
• On the issue of funding the Commission, the Court left it to the government. However, the court made an appeal to provide for a permanent Secretariat and that the expenditure be charged on the Consolidated Fund of India.
• Thus, the court in its ruling maintains a delicate balance on separation of powers.

What was the Government’s Stand? In the absence of such a law, the President has the constitutional power. Therefore, the government has asked the court to exhibit judicial restraint. 

Can the Apex Court Create a High-Powered Committee?

• Ordinarily, the court cannot.
• However, in the context of -
  • The Constitution, which clothes the citizens with Fundamental Rights and provides for constitutional goals to be achieved,
  • The inertia of the Legislative Department,
  • And where there exist clear gaps,
  • The Court may not shy away from what would be part of its judicial function.
• The ruling cites past instances of the Court stepping to fill a gap in the law, including the Vishaka guidelines to curb sexual harassment at workplace, and the interpretation on the process of appointment of judges.

What can be Inferred from the Recent Judgement?

• The SC remains the most powerful centre of political power in the country at a time when almost every political issue is a matter of adjudication before the Court.
• The judgement revives the era of judicial activism and the allegation of judicial excess only reflects the Centre’s conventional stand based on Montesquieu’s principles of separation of powers.
• The vacuum in Article 324 (2) is essentially a democratic space, which the Constituent Assembly did not want to occupy by way of any prescription and left to the future Parliament.
• That was a constitutional aspiration not fulfilled by the Parliament, leading to perceptions of bias of the Commission in favour of the ruling party.
• The functional autonomy of the CEC and the ECs has a direct link with the process by which they are selected.
• A weak Election Commission would create a dangerous scenario and detract from its efficient functioning.
• The SC’s verdict, apart from ensuring fairness in the process, can act as a constitutional lesson in India’s troubled times.
• The judgement recognises the fine distinction between conventional democracy and constitutional democracy. In the former, the majority matters, while it is the Constitution that matters in the latter. 

Conclusion: There should be no enthusiasm over the SC ruling being a panacea for all ills in our electoral democracy. Yet, the Court considerably improved the sanctity of the procedure by rectifying an inadmissible manner of selection of the commission.