Central Idea

• The Supreme Court of India (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. A neutral body for the selection of the Chief Election Commissioner (CEC) and other Election Commissioners was the principal relief sought in Anoop Baranwal v. Union of India, which has been granted by the Court as per Thursday’s verdict. The judgment revives the era of judicial activism.

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Anoop Baranwal v. Union of India: The chronology

• PIL: Current system of appointing Election Commissioners is unconstitutional: In January 2015, Anoop Baranwal filed a PIL on the ground that the current system for appointing members of the Election Commission of India (ECI) is unconstitutional. Currently, the Executive enjoys the power to make appointments.
• Pleads for Independent system: The PIL pleads for the Court to issue directions to set up an independent, Collegium-like system for ECI appointments.
• Article 324:
• Article 324 specifies that while the Chief Election Commissioner and Election Commissioners will be appointed by the President, this is subject to Parliamentary law (if such law exists).
• While this provision places an expectation on Parliament to draft a relevant a law, it has not done so up until now. In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.
• Union government’s defence: The Union has defended the current mechanism of appointments, citing the honest record of all past Chief Commissioners.
• Urged court not to intervene: It has urged the Court to not intervene, submitting that the matter falls within the executive domain.
• Recent verdict: The Supreme Court held that a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India will advise the President on appointments to the Election Commission of India until Parliament enacts a law on the subject.

What are the issues with Election commission?

• The bone of contention: Petitioners argued that as per Article 324(2), CEC and ECs appointments must be based on a law, but no law was enacted. Taking advantage of this scenario, the dispensation at the Centre chooses the CEC and ECs, who are often seen to act in tune with those in power and those who select them. Therefore, the petitioners pleaded for an independent body for appointments.
• Immunity for CEC and Susceptibility of ECs: Article 324(5) provides immunity to CEC but not to other ECs. CEC can only be removed like a Supreme Court judge. Other ECs may be more susceptible to the executive due to lack of security of tenure.
• CEC and EC’s autonomy is linked to their selection process. In an electoral autocracy, executive control undermines fair elections.

Back to Basics: What is judicial activism and judicial overreach?

• Judicial Review: It is the process by which a court reviews the constitutionality of a statue or the application of a statute, and rules either for it or against it on that basis.
• Judicial Activism: It is the view that courts make political rather than legal decisions to further some agenda, rather than strictly reviewing the legality of a law under the letter of the law and prior precedent. It refers to the process in which judiciary steps into the shoes of legislature and comes up with new rules and regulations, which the legislature ought to have done earlier.
• Judicial Overreach: It refers to an extreme form of judicial activism where arbitrary, unreasonable and frequent interventions are made by judiciary into the legislature’s domain, often with the intention of disrupting the balance of powers between executive, legislature and judiciary.

Supreme court’s Judgement: A great leap

• Great leap towards a sustainable democracy: An independent committee consisting of the prime minister, leader of the opposition in the Lok Sabha or the leader of the largest party in opposition and the Chief Justice of India for selecting the CEC is a great leap towards a sustainable democracy.
• Total Independence: The far-reaching verdict also means the Election Commission will have an independent secretariat, rule-making powers, an independent budget, and equal protection from impeachment.
• Bench remarks: Democracy can succeed only if all stakeholders work on it to maintain the purity of the election process, so as to reflect the will of the people.

Conclusion

• The recent SC verdict regarding the selection of the commission is not a cure-all solution for electoral democracy. However, it corrects an unjust method of selection and significantly improves the legitimacy of the process.

Mains Question

Q. A Constitution Bench of the Supreme Court has ordered that the election commissioners will be appointed on the advice of a committee. Discuss what led to this judgment?

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