Friday, December 8, 2023

A Landmark, But Perplexing Portent?

While there is a clamour for reforms, a vital question remains. If the power to do things is subject to a law made by Parliament and it does not do so for 75 years, is the Supreme Court justified in disturbing the constitutional machinery in place?

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By Prof Upendra Baxi

The outcome of the five-judge bench’s well-organised decision in Anoop Baranwal1 is already known to all. Its ruling that the Chief Election Officer (CEO) is only be appointed till a suitable law is made by Parliament by a distinguished panel comprising the prime minister, the chief justice of India (CJI) and the Leader of the Opposition in the Lok Sabha has caused considerable anxiety in political circles. As expected, the Union of India raised the spectre of “trampling” over the separation of powers (SOP) in the Constitution by passing of judicial power of prescribing directions (see Sections  F-H of the judgment).

I will consider this position in detail, but at the outset, we need to consider the puzzle concerning why this petition filed in 2015 came ahead of the long pendency of electoral bonds petition. Of course, allocating cases and forming benches has been recognized as a prerogative of the CJI and the matter is sensitive. This can be seen from the so-called judicial revolt of 2017 and the most recent incident involving the Chair of the Supreme Court Bar Association and the CJI (concerning an early hearing of petition concerning lawyers’ chambers) suggest.2 Yet, accountability requires some understating, even when it suited the present parties not to raise this matter at all. Not being a “court bird”, I fail to fully grasp the dynamics of what I call organisational adjudicatory leadership (contrasted with hermeneutical adjudicatory leadership, which we usually comment on). But I may only reiterate that the Court may not long avoid the application of systemic queuing theory, ruling management and other sciences.3

Also perplexing and even vexing is the uncertainty over the question of whether the right to vote is a common law, statutory or fundamental right under the Constitution, leaving the final decision on the issue for later! Yet, I will refer to several decisions though not the modification of one.

Jyoti Basu v. Debi Ghosal 4 held in 1982 that a right to elect, fundamental and vital to democracy, is “neither a fundamental right nor a common law right, but pure and simple, a statutory right” (Para 362). To this, the Court now adds that it is baseless to contend that “the right to vote and elect representatives of the State in the Council of States is a constitutional right” (Para 363). And the Court reminds the reader (Para 104) of the holding of Justice P Venkatarama Reddi (in the Supreme Court that the “the right to vote, if not a fundamental right, is certainly a constitutional right…” (Para 104).

Further, we hear: “There is nothing in the constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution” (Para 36) as if constitutional rights have an omnipotent character, standing beyond any “reasonable restrictions”! To this is added Justice Dharmadikari’s observation (Para 104) that the right to vote is “not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right” enshrined in Article 19(1)(a). Finally, discussion (on Kuldip Nayar Case, Para 108) eliminates some interpretive confusion or chaos.

Even granting the inherent complexities of the judicial discourse, is the citizen any the wiser by the additional thought suggesting a right to vote protected by the Constitution as a right inherent to “democracy” and “free and fair elections” which are essential features of the basic structure? Or is such a right or freedom something infinitely malleable to legislative/executive orderings? Is there a difference between a “right” and “right to freedom” (in Article 19)?

Perhaps, the constitutional anxieties of an honest citizen will abate somewhat when the various musings of the Court are put together. First, adult franchise is subject to many disqualifications provided in the Constitution. Second, it allows, subject to these, the right to vote, contest and to contest election results. Third, the right to vote if conceded as a constitutional right goes against electoral colleges in Upper Houses in bicameral ligatures and against any system of nominated members. Fourth, the Supreme Court itself has held valid the denial of right to vote to people in prison (Para 125). Indeed, the Court holds: “The conferment of a legislative power under Article 245 read with Article 246 is the essential legislative powers in terms of the separation of power envisaged broadly under the Constitution” (Para 138). And it rests content with the view that even the statutory right “forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives.”

But the earlier disqualifications are being questioned by people living with disability (particularly ineligibility because of “unsound mind”)5 and people in prisons. We may not discuss for reasons of space these disenfranchisements in detail here as defying international human rights norms accepted by, or customarily obligatory on, India. But the issues raised are of great importance and one need not be against the Constitution or the State to pursue these in public forums.

Reverting to the SOP perspective, Solicitor General Tushar Mehta contended that “the law contemplated under Article 324(2) is the law contemplated under Article 53(3)(b). In the absence of such a law, the President has the constitutional power. The constitutional validity of Article 324 cannot be considered as it is a part of the original Constitution”. And further, “a lack of statutory enactment” may not be equated with a “constitutional provision” (Para 13).

This is prima facie a formidable argument indeed: if a power to do things is subject to a law made by Parliament and even if it does not make any law for 75 long years, is the Court justified to disturb the constitutional machinery in place—the President’s power to appoint and the Prime Minister’s prerogative (and the Union cabinet’s prerogative to aid and advice the president) to select the CEC and other election commissioners?

However, what this ignores is the fact of “clamour for reform” (elaborately discussed in Section P of the majority judgment). The Court conscientiously discusses proposals for changes in the election machinery. It mentions the law minister-chaired Dinesh Goswami Committee in 1990, the Second Administrative Reforms Commission Report by Law Minister Veerappa Moily in 2007, the 255 Report of the Law Commission of India, 2005, proposals made by the Election Commission itself in 2016. Incidentally, all of these endorse the idea of the collegium or a committee, and all (save the Goswami Committee) endorsed the idea of the CJI being a member. Is the luster of this collective wisdom necessarily adversely dimmed by Parliament not enacting a suitable law?

In the parts having a bearing on the question of the powers of the Court and the Commission to issue directions, the intertextual discussion (Sections U, X, W) provides a complete answer. The approach of the Court is too rich to be analysed here but three aspects must be briefly noted.

First, Article 324 is a “plenary provision” investing the Election Commission (EC) to play its “strategic role” to hold national and state elections. Thus in preserving and deepening constitutional democracy, it can “fill up the vacuum by issuing directions until there is law made” (see Section BB). Even courts must be reticent to interfere with these powers. The “fate of the political parties and its candidates, and therefore, of democracy itself” is in the “hands of” the EC, for “many a time a omission or a delay in taking a decision can itself” prove “fatal …” to the holding of free and fair elections.

Second, these “infinite” powers are hemmed in by two restrictions: by the law made by legislatures and by the rule of law and equality guarantees. The latter justify the insistence on the EC being “fiercely independent, honest, competent and fair” and testing the “purity” of  the  elections on the anvil of “the rule of law” and the “grand mandate of equality”. Even if minimally, the rule of law (and equality) must mean that “men and their affairs are governed by pre-announced norms” to avert “a democratic Government brought to power by the strengths of the ballot betraying their trust and lapsing into Government of caprice, nepotism and finally despotism”.

Third, and very briefly, (incidentally, space constraints prevent an analysis of Justice Rastogi’s learned opinion favouring equal protection in the matter of removal from office to all election commissioners), the Court fully recognises (Section Q) the importance of the SOP doctrine. It follows the reasoning of the advisory opinion in Re Delhi Laws Act, 1951, which ruled that our Constitution does not recognise any “strict” doctrine/version of separation of powers. This is an important reiteration and the “delicate balance” that the Court repeatedly maintains between SOP and constitutional judicial role and duties should be welcomed by all in this golden jubilee of the basic structure and essential features doctrine, and Amrit Kaal, during which the nation proudly marches towards the centenary of her Constitution.

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer


1 Anoop Baranwal v. Union of India [Writ Petition (Civil) No(S). 104 Of 2015] delivered by Justice M.K. Joseph, with Justices Aniruddha Bose, Hrishikesh Roy, C.T. Ravi Kumar, and a learned concurring opinion by Justice Ajay Rastogi; hereafter referred to in the text by para numbers.

2, (March 7, 2023).

3 A queuing theory is the study of the movement of people, objects, or information through a line, and “mathematical study” of the “congestion and delays associated with standing in line”. See, for example, Etaga Harrison Oghenekevwe et. al., “Waiting Time Before Justice in the Law Sector: A Queueing Theory”, American Journal of Theoretical And Applied Statistics, 10:2, 129-135 (2021); Sathyam Mukherji and Ryan Whelan, “Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing”, “Interdisciplinary Physics”, Volume 6 – 2018 |

4 (1982) 1 SCC 691.

5 See, Sanjay Jain, Constitutional Law of India, 8th Edition of V.D. Mahajan’s book  published by Lucknow, Eastern Book Company Press 2023, and also see my Introduction: “Notes towards Disability Rights Theory and Constitutionalism”.         

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