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In the meeting of the Central Committee regarding the selection of the Election Commissioner, instead of discussing on the merit, the Leader of Opposition Rahul Gandhi raised objection that the meeting should be postponed because the matter regarding the selection process is pending before the Supreme Court.
Our Constitution-makers expected the Parliament to make a law to make the appointment of the Election Commissioner transparent, and for this, a provision was made in Article 324. During the debate on this article, stressing the need to create a mechanism, Dr. Bhimrao Ambedkar said that the lack of adequate provision to prevent the appointment of a person under the thumb of the executive is giving a lot of headache to the Constituent Assembly. But since no draft of such a mechanism could be prepared then, it was left to the future Parliament to make a law and implement it. Justice Tarkunde Committee (1975), Dinesh Goswami Committee (1990), Second Administrative Reforms Commission (2009) presented their recommendations regarding this. While being the leader of the opposition, LK Advani also objected to the system of appointment only on the recommendation of the Prime Minister several times. Despite all this, no law was made by the then Congress governments from 1951 to 2013.
In the PIL No. 104/2015 filed by the author for making a proper law, the Supreme Court gave a decision dated 02.03.2023 to constitute a committee. The Chief Election Commissioner and Election Commissioners would be appointed on the recommendation of this committee, which included the Prime Minister, the Leader of the Opposition and the Chief Justice of India. This committee would work until the law was made by Parliament. After this, on the initiative of the Central Government, the Appointment of Chief Election Commissioner and Other Election Commissioners Act, 2023 was passed by the Parliament. Under this law, along with the Prime Minister and the Leader of the Opposition, a Cabinet minister has also been included in the recommendation-making Committee. Now this law has been challenged before the Supreme Court through some public interest litigations mainly on the ground that it violates the decision given by the Constitution Bench in the Anup Baronial’s case. The Supreme Court refused to grant any interim relief against the Election Commissioner Appointment Act 2023.
Some important and serious questions arise. Like, while passing the law of 2023, has the Parliament done something that is against the Constitution; can it be made impartial only by including the Chief Justice in the committee; and is the task of appointing the Election Commissioner an executive function and if so, to what extent should the Chief Justice be allowed to interfere in this work?
Under the Indian Constitution, the system of election by the people has been adopted for the appointment of political institutions like the executive and the legislature, and hence they are accountable to the people. By not adopting any system like elections for the appointment of non-political constitutional bodies like judiciary or election commission, they were not made accountable to the public for their actions and were given only a constitutional-moral responsibility towards their own conscience. The system of appointment by the President was adopted for them. In the parliamentary system, this means that the President will make the appointment on the advice of the Prime Minister. But a condition has also been imposed to consult the Chief Justice regarding the judges of the Supreme Court and High Court, and to make a proper law under Article 324 regarding the Election Commission.
Before the Collegium was invented in 1993, the level of party-interference in the appointment of judges can be understood from the example of the appointment of politician and judge Baharul Islam. Baharul Islam was elected as a Rajya Sabha member from the Congress Party in 1962. He resigned from this post on 20.01.1972 and on the same day he was made a judge of the Guwahati High Court. Here, he retired on 01.03.1980 while being the Chief Justice. Nine months after retirement, he was made a judge of the Supreme Court on 04.12.1980. But about two months before his retirement from the post of Supreme Court judge, he resigned so that he could contest the election from the Barpeta Lok Sabha seat. After the election was postponed, the Congress Party again made him a member of the Rajya Sabha on 15 June 1983. For any institution, such an arbitrary attitude in the appointment to its highest constitutional post can be a matter of concern. The Supreme Court could not absolve itself of this concern. The invention of a mechanism like the Collegium is an attempt to address this concern. Its objective is that the recommendation should be made not only by the Chief Justice but also by a Collegium comprising four other senior judges on the basis of the principle of collectiveness and any appointment should be made only after such recommendation. This has been done more or less in the Act of 2023. It has been done better elsewhere. Apart from the Prime Minister and a Cabinet Minister, the Leader of the Opposition has also been kept. While the Prime Minister and the Cabinet Ministers are answerable to the Lok Sabha, the Leader of the Opposition represents a large faction of the Lok Sabha. Of course, the Chief Justice is very important as the supreme head of the judiciary, but this importance is limited to the functions assigned to the judiciary. Under the established jurisprudence, the work relating to appointments is a function of executive responsibility. In this, that too in the work of making appointments in other institutions of equal importance, involving the Chief Justice is like unnecessarily dragging him into controversy. This cannot be said to be in consonance with the dignity of the judiciary itself.
The law of 2023 is a very important step towards constitutional reform. The principle of collectiveness accepted in it needs to be applied not only to the post of Election Commissioner but also to the appointment of Supreme Court and High Court judges, and this law needs to be made better and more comprehensive. To increase the quality of the selection process, the head of the concerned constitutional institution should also be included in the Committee. For example, the Chief Justice along with the Prime Minister and the Leader of the Opposition can be included in the Committee recommending the appointment of a judge, and the Chief Election Commissioner along with the Prime Minister and the Leader of the Opposition can be included in the Committee recommending the appointment of an Election Commissioner. A provision should be made to appoint the Chief Justice and the Chief Election Commissioner by promoting the senior-most. The Committee can be made a constitutional institution by naming it ‘Constitution-level Recommendation Council’. A similar attempt was made by the Modi government in 2014 by forming the ‘National Judicial Appointments Commission’, but it was repealed by the Supreme Court itself. The question arisen why does the Supreme Court refrain from implementing the reforms for itself, what it wants for the Election Commission?
In the Central Committee meeting, Rahul Gandhi could have given his constructive contribution regarding the quality of selection, but instead he shirked his main responsibility by raising a technical objection. Such an attitude cannot be expected from the leader of the opposition regarding appointment to a constitutional post, when he knows that it is inappropriate to keep a sensitive post like the Chief Election Commissioner vacant, and the Supreme Court itself has refused to stay the law applicable in this regard.
Anoop Baranwal Deshbandhu
Advocate, Allahabad High Court, Prayagraj
Author : Bharatiya Samvidhan Ki Nirmaan Yatra
Mobile – 9415215383, 9918195383
