The ‘Invisible Vacuum’: Why The SC Could Have Stayed Away From Direct Participation In Appointment Of Election Commissioners

The Supreme Court recently observed that there is a void in the process of appointment of election commissioners which needs to be filled. 

The bench observed that in absence of norms regarding appointment, institutional integrity is adversely affected. 

Therefore, an independent mechanism would guarantee elimination of bias and favouritism.

It said that where there exist veritable gaps or a vacuum, the court may not shy away from what essentially would be part of its judicial function.

The court was of the view that Parliament did not enact any law, despite voices being raised previously, for appointing election commissioners. 

The appointment of election commissioners, as per the Supreme Court, is done on the whims and fancies of the executive.

Therefore, the objective of having an independent election commission gets defeated. 

As the election commission decides various disputes between political parties, also involving the ruling party, the executive cannot be the sole participant in the appointment process. 

It said that in modern times the election process can be abused by simply playing with the election schedule.

It was also contended that the appointment of election commissioners is reduced to bureaucrats, that too IAS officers who work in close alliance with political leaders and therefore the appointment should be from a broad pool of talent like, judicial members.

The court said that political parties would appear to betray a special interest in not being forthcoming with a law for appointments. 

It was found that vacuum exists in the appointment procedure as it was intended that the appointment by the executive was merely a stop gap arrangement and the same has to be replaced by a law made by Parliament. 

Why The Court’s Interference Was Unwarranted

An arguably better model for appointment cannot be the sole basis of interference by the court in a constitutional working procedure. 

It is settled law that courts can only deliberate on whether a particular process carried on by the executive is legal or not, it cannot decide whether a better, fairer or wiser alternative is available. 

The wisdom or soundness of policy cannot be a subject of judicial review.

Herein, critics argue that the Supreme Court, in disregard of settled law, substituted a new appointment procedure which is termed as more independent and partisan. 

The procedure for the appointment of election commissioners has been given in Article 324(2) of the Constitution. Therefore, there was no ‘vacuum’ in the first place. 

Additionally, the argument that appointments to the election commission were made on the whims and fancies of the executive, which warranted the need for a law, critics say, is fallacious. 

The Supreme Court has powers of judicial review if any aberrations or illegalities come up in the matter of appointment or acts or omissions on the part of the appointees.

Any allegations of improper exercise of power in appointment could be dealt separately by the Supreme Court. 

No Need To Lay Down Guidelines — Starkly Different From Vishakha 

From the aforesaid part it is clear that there was an ‘invisible vacuum’ which the Supreme Court has sought to fill.

However, even if we assume that in the interests of justice a legislation was absolutely necessary, there is no reason to conclude that an urgent and interim arrangement was needed. 

Under Article 142 of the Constitution, the Supreme Court is empowered to do complete justice.

The Supreme Court previously in the Vishakha Judgement laid down guidelines for what constituted sexual harassment at workplace, pursuant to which the Prevention of Sexual Harassment at Workplace Act, 2013 (POSH) was enacted. 

The court drew on an international convention providing for elimination of all forms of discrimination against women. 

Finally, on the basis of the principle that when there is no inconsistency between a convention and a domestic law and there is a void in the domestic law, and bearing in mind the meaning and content of the fundamental rights, the court went on to lay down elaborate guidelines and norms. 

The norms included as to what constituted sexual harassment, inter alia.

The court went on to even provide for disciplinary action to be initiated and a complaint mechanism.

The guidelines were, however, made binding and enforceable in law, until suitable legislation was enacted.

The norms enunciated by the court held the field for more than 15 years, when Parliament came out with a law.  

However, in the present case there was no urgency as necessitated by the factual circumstances which warranted immediate action of the Supreme Court.

It would have been sufficient had the Supreme Court recommended the Parliament for coming up with legislation. 

The Supreme Court linked the absence of legislation for appointment of election commissioner to violation of fundamental rights. 

In essence, the Court’s reasoning was that since appointment of election commission is not by an independent body, therefore the election commission would be biased, hence it would transgress the process of free and fair elections, thereby interfering with the core values of the Constitution, including the democracy and rule of law. 

Presently, the Election Commissioners are: Rajiv Kumar (CEC), Anup Chandra Pandey (EC) and Arun Goel (EC), appointed in May 2022, June 2021 and November 2022 respectively. 

Arun Pandey will retire in 2024, while others will have longer tenures. 

Therefore, none of the members were to retire immediately, which would have necessitated the need for guidelines.

The Supreme Court could have simply recommended a prompt action to the government for bringing up suitable legislation. 

Moreover, there is the inclusion of CJI in the panel. The wordy judgement of the Supreme Court even fails to address the concern regarding the need for inclusion of CJI in the panel. 

The CJI brings no expertise that could be utilised in the appointment of election commissioners.

A CJI coming from a legal background has close to no social or institutional experience which politicians and administrators are more likely to have.

It is a settled position that any appointment panel should have members having expertise in the relevant field. 

Additionally, the Supreme Court was worried that the present appointment procedure is not independent and coloured with bias.

With the inclusion of the CJI however, it is believed that the appointment panel would be an independent and impartial one. 

This assumption is rather fallacious as it cannot be assumed that procedure which is otherwise improper, would be an independent and upright method with the inclusion of the CJI.

The inclusion of the CJI in the committee for appointment of CBI director has not ensured independence of the investigative agency. It would have been much better had the Supreme Court declared qualifications and conditions for appointment of election commissioners. 

With the current order however, the court seems to have been too eager to solve a problem many are struggling to locate.