Case Briefing: ANOOP BARANWAL vs UNION OF INDIA, MINISTRY OF LAW AND JUSTICE, SECRETARY 2023
Case Title and Citation
Anoop Baranwal Versus Union of India WRIT PETITION (CIVIL) NO.104 OF 2015 (with WP(C) Nos. 1043 of 2017, 569 of 2021, and 998 of 2022) Date of Judgment: March 02, 2023
Factual Background
A batch of writ petitions, beginning with a Public Interest Litigation filed in January 2015, was brought before the Supreme Court challenging the constitutional validity of the practice of appointing members of the Election Commission of India (ECI). The central complaint was that the existing practice, where appointments of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) are made solely by the Executive (the President acting on the advice of the Prime Minister), lacks transparency, fairness, and accountability. Petitioners argued that this unchecked executive power potentially violates Article 14 of the Constitution and compromises the ECI’s independence, which is vital for maintaining free and fair elections. The issue was referred to a Constitution Bench for an authoritative pronouncement and close look at the interpretation of Article 324, particularly Clause (2).
Issue(s)
- Whether a constitutional vacuum or legislative gap exists regarding the appointment process of the Chief Election Commissioner and Election Commissioners under Article 324(2) due to the absence of a law made by Parliament.
- Whether the Supreme Court should exercise its plenary powers to lay down guidelines for a neutral and independent committee to recommend appointments to the Election Commission until Parliament enacts a law.
- Whether the Election Commissioners are entitled to the same constitutional protection against removal and variation of conditions of service as is afforded to the Chief Election Commissioner under Article 324(5).
Decision of the Supreme Court
The Supreme Court partly allowed the writ petitions.
- The Court declared that the appointment of the CEC and ECs shall be made based on the advice of a newly stipulated committee.
- The Court recommended that the protection against removal available to the CEC should be extended to the other ECs.
Reason for the Decision
- Constitutional Imperative and Vacuum: The framers of the Constitution clearly intended that Parliament would make a law governing appointments to insulate the ECI from the Executive, explicitly using the phrase “subject to the provisions of any law made in that behalf by Parliament” in Article 324(2). The absence of this law for over 70 years created a constitutional vacuum, leaving appointments solely within the Executive’s discretion, a situation the Founding Fathers had specifically warned against as jeopardizing independence.
- Preserving Democracy and Fundamental Rights: An independent Election Commission is indispensable for holding free and fair elections, which is a basic feature of democracy. The perceived lack of transparency in appointments undermines public faith and is intricately interlinked with the transgression of fundamental rights like Article 14 (Equality) and Article 19(1)(a) (Freedom of Expression).
- Judicial Intervention: Since successive governments have failed to act despite numerous recommendations from expert bodies (like the Goswami Committee and Law Commission) urging reforms, the Court must exercise its plenary power under Article 142 to lay down guidelines to fill this void until the Legislature intervenes.
- New Mechanism: The new appointment mechanism, involving the Prime Minister, Leader of the Opposition, and the Chief Justice of India, ensures neutrality and reflects practices recommended by various committees for independent constitutional bodies.
- Protection of ECs: Given that the ECI functions as a multi-member body, it is desirable to extend the removal protection given to the CEC (removal only in the manner and on the grounds as a Supreme Court Judge) to the Election Commissioners to safeguard their independence.
Conclusion
The Supreme Court mandated that the appointments of the CEC and ECs shall be made by the President based on the advice of a Committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. This interim norm shall remain effective until Parliament passes a law regarding appointments. The Court also made a fervent appeal to the Union/Parliament to consider establishing an independent Secretariat for the ECI and arranging for its expenditure to be charged on the Consolidated Fund of India to ensure true independence.
Case Materials:
Day 1 of Arguments: 17 November 2022 (Video Recording)
Day 2 of Arguments: 22 November 2022 (Video Recording)
Day 3 of Arguments: 23 November 2022 (Video Recording)
Day 4 of Arguments: 24 November 2022 (Video Recording)
