The Supreme Court on March 2 delivered a crucial verdict regarding the appointment of Chief Election Commissioner (CEC) and Election Commissioners which has received mixed response from various segments of society. It’s apparent from the judgment that it intends to insulate the appointment of CEC and Election Commissioners from the executive's interference. But the verdict cannot escape the scrutiny of Constitution being an act of the Supreme Court that has trespassed into the domain of the executive and the legislature.
According to former Union Law Secretary PK Malhotra, who had previously headed the Legislative Department in the Law Ministry, through this judgment the court is legislating which is the domain of parliament. He said, "So, you are basically legislating in an area where you have no authority. You can interpret the law; you can interpret the Constitution ... that is fine. They must have said this (the SC Bench) for greater transparency. But the same thing can be said with regard to the appointment of judges; also that there should be transparency, there should be a procedure...”
Under the Constitutional scheme, the Election Commissioners are appointed by the President which essential means upon the advice of the Council of Ministers or the Government. But as per the new rules framed by the Supreme Court through this judgment, the Election Commissioner is to be appointed upon the advice of a committee consisting of the Prime Minister, the Leader of Opposition and the Chief Justice of India.
The court reasoned with its judgment by saying that such rules are meant to fill up the “lacuna” in regulations concerning this matter. But isn’t the decision of the court in contravention of the doctrine of the separation of powers.
The doctrine of separation of powers has its roots firmly held by the Constitution itself, which established separate and independent organs, the legislature, the executive and the judiciary. The Constitution mandates the legislature to enact the law, the executive to enforce/implement the law and the judiciary to adjudicate upon the law. Isn’t it paradoxical that the doctrine of separation of powers was made a part of the “basic structure” of the Constitution by none other than the Supreme Court which has delivered the Election Commission verdict contrary to what it had once held?
Article 324 of the Constitution in explicit terms prescribes that the appointment of the Chief Election Commissioner and other Election Commissioners shall be subject to the law made by the President. It is, therefore, quite clear that the Constitution makers intended the law in this domain to be made by the legislature; that in essence will be the reflection of the will of the people in regulating the process of the appointment of the members of the body that will be in charge of regulating and conducting free and fair elections. Interestingly, the Constitution has ascribed no role to the judiciary in the process of appointment of the Election Commissioners.
However in this case, the court has sadly tried to assert that it is the only impartial body capable of acting in the best interest of the nation; otherwise, why would it give a verdict of this kind when the legislative avenue is available and it has itself been quite vocal about the doctrine of separation of powers (being part of the basic structure of the constitution) and especially when it had with a majority judgment in 2015 struck down the National Judicial Appointments Commission (NJAC) Act by holding it unconstitutional being in contravention of the basic structure doctrine.
The NJAC intended to enforce a system of checks and balances in the appointment of judges that would assure impartiality and rule out nepotism which was held by the court to be a threat to judicial independence and, therefore, contravening the “basic structure of the Constitution”.
The court’s decisions in the NJAC and the Election Commission verdicts are based on two diametrically opposite logics. In the former case, the independence of judiciary and separation of powers was given a sacrosanct ‘ring of protection’ whereas in the latter case the ‘ring’ is missing so as to take care of the ‘lacuna’ in regulation for appointment of Election Commissioners. Does it infer that somewhere the ‘principle of convenience’ is adopted by the court in adhering to the basic structure doctrine?
While the court is so protective about its own independence (which is also essential), it should be equally protective about the independence of the other two institutions, the executive and the legislature! The constitutionally drawn Lakshman Rekha of separation of powers must be respected by the judiciary unless it is a compelling case for judicial review and there is a clear absence of an alternative avenue within the Constitutional framework.
(The writer is an Addl Central Government Standing Counsel and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)