By Anmol Kaur Bawa, Symbiosis Law College, Pune.

Anoop Baranwal v. Union of India, Ministry of Law and Justice Secretary (Writ Petitions Civil Case no. 104/2015), is the recent PIL case, filed in the Supreme Court, which has managed to sprout a new series of debate between the Judiciary and other wings of the Government. The debacle intends to put Article 324(2) of the Constitution under critical review. The petitioner in a writ, has brought to light the question of implementation of Article 324(2), which states:

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

The area of concern for the Judges and the petitioner, herein, is pertaining to the second part of the Article, which states and connotes that “the appointment of CEC and other ECs shall, subject to provisions of any law made in that behalf by Parliament, be made by the President”. Thus the Article signals the requirement for a law, or Act, to be made by the Central Legislature, which mandates the appointments of the CEC and other ECs. This executionary addition is essential from the point of view of justice, as it means to preserve the fundamentals of “free and fair” elections.

Enumerating the Spirit of Article 324(2):

“The Election Commissioners supervise and hold elections across the Country, and this is the significance of their office, and their selection has to be made in the most transparent manner”, a Bench comprising Chief Justice J S Khehar and Justice D Y Chandrachud said.

The Bench referred to the mandate of Article 324(2) of the Constitution and said, “it is expected from Parliament to make the law, but it has not been made”.

The arguments advanced by Adv. Prashant Bhushan, representing the petitioner’s side state that  a direction should be issued for making the law to ensure a “fair, just and transparent process of selection by constituting a neutral and independent Selection Committee to recommend the name for the appointment of the members of the Election Commission”.

He further mentioned that the Law Commission, and the Parliamentary and Statutory Committees have also favoured transparent and fair procedures for appointing the CEC and ECs.

“The independence of the Election Commission is paramount” he said, adding that the selection and appointment cannot be left at the hands of the political executives.

The grave concern shown by the Bench and the petitioner shall be drawn from the genesis of what this Article actually means to protect, that is, Democracy. The researcher shall scrutinize the link dwelling between the two. Firstly, the enshrining of Democracy as a key ideal in the Preamble, in itself reflects the constitutional importance the architects of the Constitution endowed upon such ideological governance.

Secondly, in the Kesavananda Bharati Judgement, it had been established that the Basic Features of the Constitution are outside the amending ambit of the Parliament. It was specified therein, that the Preamble is a Basic Feature of our Constitution and thus, it cannot be amended. That is to say, all the contents, including the Ideal of Democracy contained within the Preamble presumed the place of the basic structure, as they enlighted the very spirit of the Indian Constitution. Furthermore, in S.R Bommai v. Union Of India, the Supreme Court upheld “democracy” as a basic feature of the Constitution, thus strengthening the precedential and constitutional value of democracy in the eyes of law.

Examining Article 324(2) in light of the above mentioned, the researcher shall derive the third explanation on the argument of “mechanical articles” provided within the Constitution. It wouldn’t be wrong to say that Article 324(2) not only germinates from the preambulatory ideals but also ensures the practical execution of the same. The appointment of CEC and other ECs indeed shares nexus with transparency of administration and “free and fair elections”.  By way of “mechanical”, the researcher ascertains that the Article in question operates on the theory of democracy and as a consequence, intends to serve as a basic essential of the same, that is, appointing the supervisors of the election system in the Country.

Fourthly, why the Court considers it necessary to have a law or Act which governs the appointment process, is to ensure, that the provision “Appointment by the President” is not corrupted at the hands of the governing party and Council of Ministers, by way of partial recommendations made to the President. It should further be kept in mind that, any provision that vests Powers of Appointment in the President, in common understanding, overarches the need for the President to make such appointment on the advice of the Council of Ministers and the Head of the Government.

Writ or Wrong?

The argument presented by the State seems to be a viable one, upholding the philosophy of separation of powers. Solicitor General, Ranjit Kumar, representing the Centre, said that the President and the Prime Minister appoint the CEC and ECs and the Court cannot be asked by the petitioner to intervene.

“None other than the Prime Minister is involved in the selection of the ECs. Besides, it is for the Parliament to decide whether there should be a law or not”, were his exact words.

The government’s response cannot be considered entirely faulty. Their argument gains merit only to the extent if the judiciary intends to overstep its jurisdiction and compel the legislature to make certain laws. However, power of judicial review conferred by way of writ jurisdiction to the Supreme and High Courts nullifies this proposition by the government. The reason for the same lies in the concerns Art. 32  upholds.

Since the case filed is under a “writ” petition, it is by way of jurisprudential explanation, upholding and re-claiming the fundamental rights of the aggrieved. In the case, pertaining to the appointment of the CEC and ECs, the Supreme Court withholds its authority by weaving a beautiful tapestry of “Golden Triangle Articles” of the Indian Constitution. Such an entitlement endowed on the three provisions of the Constitution, Art. 14: Right to equality and equality before Law, Art.19: Right to Freedom and Art. 21: Right to Life and Personal Liberty, are, because of the elementary goals they absorb themselves in, that is, Equality, Liberty and Justice, thereby enmeshing a triangle of protection of Rule of Law.

In the researcher’s view, the application of the Golden Triangle Rule becomes necessary to comprehend the grievance of the concerned petitioner. Though the current appointment procedure followed has not so far violated the norm of transparency in administration, it does not keep away the perilous potential to corrupt the election machinery, and thereby jeopardise free and fair elections in future. Hence, the void that the partial implementation of Art. 324(2) presents, stands as potential threat to citizens’ Liberty, Equality and Justice, as guaranteed by the Articles covered under the Golden Triangle Rule.

Therefore, if any of the fundamental rights are violated or under threat of violation, Article 32, i.e., Right to Constitutional Remedies, comes to the rescue. It is the guarantee of recognition and  the remedial nature of Art. 32 which empowers the judiciary to draw its ears to such grievances of Public Interest, at large. The Bench said that it would accord the final hearing in the matter and fixed it for hearing after two months. The matter still lies sub-judice.