The Supreme Court's decision to fill the "gaps" in the appointment of Election Commissioners is yet another affirmation that ‘separation of powers’ is an illusion in India.

The decision by the bench comes on a set of petitions that were filed in 2015, that began to be heard along with other tagged petitions in September 2022.

The Court's decision that the appointment of the Chief Election Commissioner and Election Commissioners be done through a committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha (or the leader of the largest opposition party) and the Chief Justice is based on similar conventions for other posts, especially the Lokpal.

The judgment, running into a brief 378 pages, has a majority opinion rendered by Justice KM Joseph and a concurring opinion by Justice Ajay Rastogi.

The main divergence between the opinions is that Justice Rastogi held the right to vote to be a Fundamental right while the majority opinion was that it was a constitutional right, a position from earlier judgments.

The Judgment is concerned with Article 324 of the Constitution, and in specific Article 324 (2) that reads:

"The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President."

Since 1993, there has been one Chief Election Commissioner and two Election Commissioners. The convention has been that the person appointed as the Election Commissioner later on takes the role of the Chief Election Commissioner.

In the judgment, it is the lack of the law made by Parliament that the court "fills" through this judgment.

Filling a Constitutional "Silence"

The decision of the court to fill the constitutional "silence" marks yet another landmark in the constant tug of war between the Legislature/Executive and the Judiciary.

The constant conflict between the organs of the government had yielded broadly positive results for the executive in the early decades of the republic.

Since the Emergency period, and more so since the 1990s, the Supreme Court has pushed the envelope further and further as the political executive became weaker.

In recent years, the court has shown self-awareness at times and has left some amount of policy making to the Government of the day. For example, a recent public interest litigation (PIL) filed for nationwide menstrual leave was dismissed by the Chief Justice on the grounds that it is a policy exercise that should be decided by the Government of India. Even in this judgment, the court states:

"We are equally cognizant that the courts must not try to run a Government nor behave like emperors."

The court itself has found no grave error in the appointment of the Election Commissioners itself; rather it places the problem with the lack of a six year term for them.

The lacunae is in the Parliament's failure to enact law regarding the system of appointment of the EC which the judiciary has now sought to solve through the use of constitutional putty that it has in abundance.

Democracy, Elections and the Election Commission

The Judgement speaks at length about the importance of democracy and elections, and thus how important the Election Commission becomes.

Have there been grave incidents of concern in the conduct of elections in the past 70 years? Certainly so - all of us know of ballot stuffing (an issue of the past since EVMs came about) or the prevailing issue of fake voting or double voting.

In broad terms, has there been a grave failure in the conduct of elections by the EC itself? None that the court notes especially in its judgment. Rather it is preoccupied with protecting the integrity of the elections. In a rather telling passage, the majority judgment goes :

"The electoral scene in the country is not what it was in the years immediately following the country becoming a Republic. Criminalisation of politics, with all its attendant evils, has become a nightmarish reality. The faith of the electorate in the very process, which underlies democracy itself, stands shaken."

Meanwhile, the polling in the last General Election to the Lok Sabha in 2019 was the highest ever recorded at 67 per cent, compared to 45.7 per cent in the first general election in 1952 or 45.44 per cent in the subsequent elections in 1957.

Indian voters continue to rate India's democratic credentials highly, as affirmed by surveys by Pew or in the recent "Democracy Perception Index".

The court has of course found the "time ripe" to lay down "norms" for the appointment of Elections Commissioners. The justifications for any intervention by the court are not scarce. It finds more than enough threads based on Constitutional decisions of years past. Surely the judgment in this issue will be used to justify some other intervention. The decision in this case rests on the grounds to protect the independence and non-partisanship of the Election Commission.

In the past 70 years the Indian Republic has seen 17 general elections whose integrity has not been questioned. We have seen multiple governments rise and fall. We have consistently seen peaceful transitions of power.

There have been questions over the appointment of the Election Commissioners, but none to the extent that would vitiate the result of any election. That the court finds it fit, "ripe" in its term due to "criminalisation" of politics (a justification it uses more than once) is interesting to say the least.

There is another point about the nature of the duties of the Election Commission. The nature of the exercise is mostly administrative, and execution-oriented working in close quarters with the instruments of the executive. There is a reason former bureaucrats have been appointed by all Governments, after all.

The Supreme Court is doubtlessly charged with the duty of protecting the Fundamental Rights of the citizens of the country. A charge it has taken seriously on many matters.

The Court has however in the past 30 years taken on itself powers plenty. The re-reading of the Constitutional provisions in the Second Judges case (1993) and the Third Judges case (1998) has given the Judges the right to appoint their own successors to protect the "Independence of the Judiciary".

The introduction of PIL jurisprudence has been taken to such heights that the courts can set out minute policy decisions - as can High Courts. The story is well known: the power of the courts remains boundless, uncontained by the Constitution it is charged to protect. For the court itself has become the arbiter of the Constitution. The Parliament has long since been displaced as the body that can change the Constitution. It can pass amendments, of course. But what those words mean, if they mean anything - is decided by the court.

Not A New Normal - A Reminder Of Reality

The decision is not an incremental increase in the powers of the Supreme Court. It is another landmark, another use case of the Court doing what it always wielded.

The Government of India is unlikely to create much fracas about the judgement; the outcome is certainly not ideal but neither is it a deathblow to its discretion. The "norm" declared by the Supreme Court continues only until a law is made by Parliament.

It would be pertinent to note that the director of the Central Bureau of Investigation is also appointed by the same committee constituted by the Supreme Court, and it was the same committee that was proposed to nominate two eminent jurists to the National Judicial Appointments Commission. A proposition that in the latter case, it found problematic.

There has been a significant amount of conversation in the recent past about the appointment of judges and the problems of the collegium system, and this judgment is a yet another reminder of the power wielded by those who have no form of accountability.

The Court's commitment and dedication to safeguarding and protecting Indian democracy by ensuring impartiality, transparency and accountability in the appointment of election commissioners is praiseworthy. If only it could show the same for its own.

People living in glass houses and what not.

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