[This is a guest post by Shrey Garg.]
The enactment of the Election Commission (Appointment, Conditions of Service and Term of Office) Act, 2023 (hereinafter ‘2023 Act’) and its restoration of executive dominance in the appointment process of the Chief Election Commissioner (CEC) and Election Commissioner’s (EC’s) raises an important constitutional question about the role of the executive in shaping the very institutions that are tasked with regulating its influence and holding it accountable. The 2023 Act reinstates the executive dominance in the appointment process by replacing the appointments framework proposed by the Supreme Court in the case of Anoop Baranwal v. Union of India which institutionalised a consultative and bipartisan framework for appointments of CEC and EC’s by proposing a selection committee composed of the Prime Minister, Leader of Opposition and Chief Justice of India until the Parliament plugs the ‘legislative gap’ within the text of Article 324(2) through an appropriate legislation. However, the 2023 Act by replacing the CJI in the selection committee by a Union Minister appointed on the recommendation of the PM dilutes this institutional framework
The constitutionality of the Act is currently under challenge before the Supreme Court where the petitioners argue that the Act dilutes the appointments framework put in place in Anoop Baranwal and undermines the institutional independence of the ECI by restoring executive dominance in the appointments process. The Union Government on the other hand defends the constitutionality of the 2023 Act by arguing that the Parliament retains the ultimate power to determine the appointments framework for ECI and the framework proposed by the judiciary in Anoop Baranwal as only temporary until the Parliament enacts a suitable legislation.
This conflict raises a deeper constitutional question- – are there limits on the power of the Parliament to alter the very institutional structure of institutions whose independence is essential for the very survival of our democracy and if such limits exist how can they be imposed in a principled manner by the courts. In this post, I evaluate this question through the extension of the concept of a ‘constitutional statute’ discussed previously by Gautam Bhatia and Malvika Prasad in context of non-constitutional bodies.
I argue for extension of the concept to constitutional institutions like ECI which perform an essential function of free and fair elections and therefore structure a relationship between the citizen and state. On the basis of this theoretical conception, I therefore argue against an implied repeal of the standard of institutional independence of the ECI proposed in the Anoop Baranwal case through the 2023 Act.
Redefining the Concept of A ‘Constitutional Statute’
Bhatia’s conception of a ‘constitutional statute’ is based on the premise that fundamental rights impose a positive obligation upon the state to create conditions for realization of fundamental rights. In relation to non-elected bodies, Bhatia argues that this positive obligation of the state can be fulfilled through creation of an ‘infrastructure of implementation’ in absence of which such the positive dimension cannot be effectively fulfilled.
At this stage Bhatia introduces an important nuance to the framework. He argues that this framework cannot be judicially created because it would raise legitimate concerns grounded in lack of expertise and legitimacy. Therefore, Bhatia argues that once such a statute is put in place by the legislature it becomes imperative for courts to institutionalize an ‘infrastructure of implementation’ for operationalizing the underlying fundamental right and any retrogation from this established standard should be declared unconstitutional.
The conception of ‘constitutional statute’ proposed by Bhatia however becomes normatively difficult to apply to institutions like ECI which do not enforce a clearly recognizable fundamental right but operationalize principles like free and fair elections which are essential for preservation of a democratic order. In comparative constitutional developments in the UK, also the emphasis on constitutional statutes has shifted from rights enforcing legislations to institutions which perform similar functions like institutions restructuring state power. Scholars like John Mc Garry and Samantha Spence drawing from the jurisprudential experiences in the UK have advanced ideas like recognizing ‘constitutional fundamentals’ like free and fair elections as also within the scope of constitutional statutes if they are either codified through an appropriate legislation or interpretated as part of common law by judges.
Once such a legislation is put in place, the court’s in UK jurisprudence have drawn a different test for these laws than ordinary statutes. Laws J. in the case of Thoburn v. Sunderland City Council observed that a constitutional statute can be repealed through an ‘actual not imputed, constructive, or presumed – intention’ of the Parliament expressed through ‘words so specific that the inference of an actual determination to effect the result contended for was irresistible’. He further also invoked the principle of legality which mandates that any statute enacted by the Parliament should be construed to not depart from intention expressed in the previous statute except use of clear and unambiguous words. The commentary on this case and subsequent affirmation of this test by the Supreme Court of UK have argued that this approach of express repeal provides a quasi-entrenched status to constitutional statutes in UK whose repeal is more difficult than an ordinary statute. A similar version if adopted in Indian context can solve the problem of ‘thin entrenchment’ in the original constitutional design of the appointments procedure of ECI officials as argued previously by Bhatia.
Free and Fair Elections as A Constitutional Fundamental in India
In the Indian context, the idea of free and fair elections has been recognized as a part of the basic structure doctrine in the case of Indira Nehru Gandhi v. Raj Narain and has been subsequentially reaffirmed as an essential constitutional principle in subsequent jurisprudence. The idea of free and fair elections also does not operate as a judicial abstraction but has been operationalized through laws like the Representation of People Act 1950 and Representation of People Act, 1951 which entrust the ECI with sufficient powers and functions to hold free and fair elections in the country.
Therefore, the idea of free and fair elections can meaningfully alter the relationship between a citizen and state by providing the citizen a legitimate exercise of their voting power in a transparent manner and the ECI as a public institution governing elections performs an essential role in providing meaningful conditions for the same. The enactment of these legislations also serves as evidence of a parliamentary intent for upholding the spirit of free and fair elections in India. A similar argument has been previously made on this blog.
This provides a principled justification for securing the institutional independence of the ECI through a fair and transparent appointment process free from interference of the executive branch. This proposition also finds support from the KM Joseph J’s reading of independence of the institution as an underlying philosophy behind the Parliament providing for a long stint of six years for CEC and EC’s of the ECI through the The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
Joseph J. in his majority judgment notes:
The philosophy behind giving a reasonably long stint to the appointee to the post of Election Commissioner or the Chief Election Commissioner, is that it would enable the Officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence. An assured term would instil in the appointee, the inspiration and the will to put in place any reforms, changes, as also the inspiration to bring out his best. A short-lived stint may drain the much-needed desire besides the time to fulfil the sublime objects of the high Office of the Election Commissioner or the Chief Election Commissioner. Any tendency towards placating the powers that be, would wax as also the power and the will to assert his independence may wane, bearing in mind, the short tenure. This apparently is the underlying philosophy of the law made by Parliament, assuring, a term of six years. (emphasis mine).
A structural reading of these legislations and their judicial interpretation leads to the conclusion that that free and fair election qualifies as a ‘constitutional fundamental’ in the Indian context and the institutional independence of the ECI serves as an effective ‘infrastructure for implementation’ for operationalizing this principle and together the whole framework qualifies the modified version of ‘constitutional statute’ proposed in this article and any statute enacted by the legislature in future could be expressed only through an expressed repeal.
Evaluating the 2023 Act
The 2023 Act deals with as the title suggests with the appointments, tenure and service conditions of the Chief Election Commissioners (CEC) and Election Commissioners (EC). Therefore, the core subject matter has an important bearing on the institutional independence of the ECI. Therefore, from the perspective of its constitutionality, the evaluation of the provisions of this statute
Section 8 of the 2023 Act has put in place a three -member selection pannel for the appointments of CEC and EC’s which finalizes the appointments through a majority vote. Since the pannel consists of two members who form the part of the executive branch ( PM and a Union Minister) this framework raises legitimate concerns of ‘executive capture’ of the ECI as it renders any dissent from the LoP in the appointment process meaningless and his presence in the committee is merely ‘ornamental’ as the petitioners before the Supreme Court have contended.
Therefore, it weakens the very ‘infrastructure of implementation’ that is required to ensure that ECI functions in a transparent manner and performs its functions of ensuring genuinely free and fair elections which are acceptable to both the general electorate and the political actors. However, a partisan appointments procedure jeopardizes ECI’s capacity to gain a broad support base with electorate and the political actors due to charges of partisanship. Therefore, scholars like Tarunabh Khaitan have argued for freeing ‘guarantor institutions’ like ECI from partisan structures. In this backdrop, it becomes essential that the court applies the stricter test of an express repeal of a prior constitutional statute by the Parliament proposed in the UK context.
The application of doctrine of express repeal in Indian context requires an important doctrinal clarification. Such an application is not in contrast to Parliament’s power to enact a statute under Article 324(2) but only limited to ensuring that any such statute should respect the parliamentary intent expressed in the already existing legislative framework i.e. furthering the institutional independence of the commission by putting in place a robust and non-partisan appointments framework and any such departure from this framework should be accompanied by a clear parliamentary intent which can be gleaned from the very text of the statute ( like the statements of objects and reasons clause of the statute).
In the present case, the statement of objects and reasons clause of the statute only mentions that the Act has been enacted as per the mandate of the Supreme Court in the Anoop Baranwal case to enact an appropriate legislation for appointments of CEC and EC’s. Therefore, as a logical corollary the provisions of the statute should respect the underlying basis of Anoop Baranwal case which was to have a consultative process for appointments of CEC and EC’s. The clause nowhere states that there is a clear parliamentary intent to depart from this consultative framework proposed in the Anoop Baranwal case. Therefore, the present statute fails to meet the doctrinal test of ‘express repeal of a constitutional statute’.
At this stage, there is a need for an important clarification. may appear that by characterizing certain statutes as ‘constitutional statutes’ there is a disguised attempt to extend the basic structure doctrine style judicial review to ordinary legislations. Any such objection is serious given the contested terrain of basic structure review of ordinary legislation in India. However, the argument made here is limited in its scope. It only argues for preservation of those constitutional fundamentals for which a statutory framework already exists and therefore, there is a clear parliamentary intent for having such a fundamental. In such cases a stricter review of a subsequent legislation becomes a legitimate judicial intervention to prevent a retrogression from an already established framework for safeguarding a constitutional fundamental.
Conclusion
The ongoing hearings before the Supreme Court have articulated the question about the constitutionality of the 2023 Act about preserving the institutional independence of ECI and the role of Parliament in its appointing process keeping in mind the broader principles of free and fair elections which form a fundamental core of India’s constitutional democracy. This case poses a challenge before the judiciary about how to preserve ECI’s institutional independence which formed the core part of the reasoning in Anoop Baranwal without exposing itself to charges of judicial overreach.
The extension of the category of constitutional statutes to ‘ constitutional fundamentals’ as argued in this blog offers a principled ground for the court to strike a balance between legislative deference and judicial overreach. It recognises that certain statutory frameworks like those securing institutional independence are integral to the functioning of democracy while preserving parliamentary authority to alter them through clear and deliberate action.
