An Attack on Indian Democracy

Last week, the Indian government introduced a bill in Parliament providing for, inter alia, the mechanism for appointing Election Commissioners in India. The bill proposes the creation of a three-member Selection Committee composed of the Prime Minister, a Union Minister nominated by the Prime Minister, and the Leader of the Opposition to make recommendations to the President in this regard.

Election Commissioners, currently three in number, with one acting as the Chief Election Commissioner, constitute the Election Commission of India. It is a constitutionally recognized federal institution vested with all the powers related to matters pertaining to the election to Parliament, State Legislature, and the offices of President and Vice President. Apart from conducting elections and preparing and updating electoral rolls, its functions include registering political parties and resolving disputes between them. Given such crucial roles that the Election Commission plays, the proposed Executive-dominated Selection Committee raises several questions about the conduct of free and fair elections in India.

In the paragraphs to follow, I first discuss a recent Supreme Court decision that preceded the introduction of this bill and how this bill, as a response to the Court decision, is instructive to constitutional drafters. I then discuss the possible approaches the Supreme Court of India could adopt when the new legislation is challenged to push back against the Executive’s undemocratic maneuvers.

The Indian Supreme Court’s decision in Anoop Baranwal

Earlier this year, a five-judge constitution bench of the Indian Supreme Court handed a ruling on the appointment process of the Election Commissioners in India, effectively amending the constitutional provision in the interests of democracy. Article 324(2) of the Indian Constitution made a provision in this regard, stating:

“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.”

As the Indian President is merely a ceremonial head of the Executive, the power to appoint Election Commissioners necessarily remained with the incumbent Prime Minister. In reaching its decision, the Supreme Court took cognizance of the drafting history of this provision and recommendations made by several commissions to change the appointment procedure. It also noted the critical role that the Election Commission plays in ensuring a level playing field between all political parties and conducting free and fair elections. Finding that the absence of parliamentary law in accordance with Article 324(2) creates a legislative vacuum that could impact people’s right to vote and the Indian democracy, the Supreme Court held that henceforth, the appointment of the Election Commissioners should be made by the President on the recommendation of a Committee of three constitutional actors. It held that the appointments,

“shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the [Lower House of Parliament] and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the [Lower House of Parliament] having the largest numerical strength, and the Chief Justice of India.” (Anoop Baranwal v. Union of India, ¶239)

Notably, the Court clarified that it is cognizant of the scheme of separation of powers and does not intend to legislate on behalf of the Legislature. This direction was a stop-gap measure to redress the existing legislative vacuum, and it was to remain in force “till a law is made by the Parliament.”

A bill has now been introduced in Parliament to overturn the effects of the judgment. While retaining the idea of a Selection Committee making recommendations to the President, the bill substantively changes the composition of the Committee by replacing the Chief Justice of India with ‘a Union Cabinet Minister to be nominated by the Prime Minister.’ (Section 7) Given the numerical strength that the BJP carries in both Houses of Parliament, it is certain that this bill will sail through, and perhaps with minimal parliamentary deliberation despite its significance. Once passed, this law will virtually reinstate the original position of Article 324(2) and make the appointment procedure executive-dominated.

An Unguided Trust in the Future Legislature

Rosalind Dixon and Tom Ginsburg show in their 2011 paper that deferral or ‘deciding not to decide’ is a common constitutional drafting mechanism, particularly in the post-war African, South Asian, and Middle Eastern constitutions. Deferrals help drafters reserve certain constitutional questions to be deliberated by future legislatures for many reasons, including the incentive to avoid decision costs during the charged moments of constitutional making and error costs on account of informational asymmetries.

The Indian Constitution also contains several such provisions wherein important questions were left to be resolved by a future parliament ‘by law’. For instance, after having included a few provisions about the determination of citizenship in the immediate aftermath of the partition of India and Pakistan, the drafters left it to Parliament to legislate on all matters of citizenship going forward (see Article 11). Interestingly, the constituent assembly debates tell us that in the earlier iterations of this provision, the power deferred to the Parliament was only to make ‘further provisions’ on the issue of citizenship. However, later on, and for no detectable reason, the constituent assembly amended this provision to empower the Parliament to make ‘any provision’ on citizenship (see page 8). As I have argued elsewhere, this design change instituted an unguided delegation of power to the legislature and allowed future parliaments to shift Indian citizenship laws from the principle of jus soli to that of jus sanguinis.

Similar is the story of Article 324(2). A reading of constituent assembly debates (pages 27-49) on the drafting of this provision suggests that establishing an independent Election Commission was one of the primary goals for including provisions related to the Election Commission in the Constitution. There were even suggestions to make parliamentary approval by a two-thirds majority prerequisite for appointing Election Commissioners. While the drafters duly noted and agreed upon the underlying theme of independence, parliamentary approval was not included to avoid situations wherein appointments could be delayed due to parliamentary recess and other such factors. It was believed that a future parliament would deliberate and decide appointment mechanisms for an independent Election Commission, and presidential appointment could work as a temporary mechanism. However, the constituent assembly failed to put any guidance or checks on the power of the legislature in this regard and drafted the provision in this manner: ‘subject to any law made in that behalf by Parliament,’ necessarily giving rise to the possibility of the current proposed law.

Therefore, it wouldn’t be wrong to state that the current situation is the creation of a flawed design of Article 324(2). What makes it more incomprehensible, at least to me, is that the assembly guarded against the possibility of abuse by Parliament in a subsequent provision. Article 326 guarantees universal adult suffrage in India and specifically provides that no eligible citizen can be denied their right to vote by a parliamentary law on grounds other than that of ‘non-residence, unsoundness of mind, crime or corrupt or illegal practice.’ Compared to Article 324(2) or Article 11, the deferral in Article 326 is guided, limiting the maneuvering possibilities available to Parliament.

This shows that deferrals are a risky drafting tool. If adopted, they should be designed with the necessary guidance for future legislatures. Otherwise, they not only present open opportunities for the introduction of undemocratic or autocratic legislation but, more importantly, they also make it harder for the judiciary and other guarantor institutions to push back against such technically valid but substantively undemocratic exercise of power. In these situations, the only way in which pushback can succeed is when these institutions can win public trust on normative grounds, which may be very difficult in the age of populism. Therefore, it is recommended that deferrals must, at the minimum, be drafted with normative inter-temporal control.

What could the Indian Supreme Court do if (when?) the law is challenged?

It is true that the plain reading of Article 324(2) and the Supreme Court decision suggest that the Parliament is within its right to legislate the appointment of Election Commissioners. However, I argue that when Article 324(2) is interpreted in light of its drafting history and the institution of the Election Commission analyzed against the role it performs in a democracy, one could read limitations on the manner in which the Parliament could exercise its legislative powers. These limitations would suggest that the current proposed law is unconstitutional.

I present three-fold arguments in this regard. First, a study of India’s constitutional history would show that there was a visible change in the structure of power distribution and the role of the Executive with the introduction of the Constitution of India. As the Supreme Court also discussed at length, the subject of elections and other related matters were consciously taken out from the Executive’s domain and vested in an independent Election Commission, a body duly recognized in the Constitutional text. While the decision on the appointment procedure was deferred, there was a near-unanimous agreement that for the success of the Indian democracy and confidence in its electoral processes, the Election Commission must function independently of the Executive. As Dr. BR Ambedkar noted in the Constituent Assembly,

“… the House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. … so far as the fundamental question is concerned that the election machinery should be outside the control of the executive government, there has been no dispute. What [draft] article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislature of States to a body outside the executive to be called the Election Commission.” (¶18)

In addition to creating a separate body, the Constituent Assembly also decided to centralize the powers related to elections within a single federal Election Commission to avoid any form of influence of the incumbent state governments in the state elections. Ambedkar recognized that these changes were a ‘radical’ break from the past but ‘necessary’ to the Indian constitutional project. The current proposed law shows imprints of colonial-era thinking and is an attempt to abuse the gaps in the constitutional drafting for undemocratic goals.

Second, the Supreme Court based its intervention in Anoop Baranwal on the principle of constitutional silence, which allows the court to fill the legislative gaps in the interests of justice. As the Court noted,

“… there is no magic formula [for the separation of powers] and what it all amounts to is, the need to maintain a delicate balance [of power among the three branches]. While, it is true that, ordinarily, the Court cannot, without anything more, usurp what is purely a legislative power or function, in the context of the Constitution, which clothes the citizens with Fundamental Rights and provides for constitutional goals to be achieved and inertia of the Legislative Department producing a clear situation, where there exist veritable gaps or vacuum, the Court may not shy away from what essentially would be part of its judicial function.” (¶210)

It is important to note what the Court considered as the ‘vacuum’ to be filled with its stop-gap solution. The Court noted, at ¶220, that ‘the vacuum in the case of Article 324(2) is the absence of the law which Parliament was contemplated to enact.’ One paragraph above, the Court had already clarified that a law in this regard ‘could not be one to perpetuate what is already permitted namely appointment at the absolute and sole discretion of the Executive.’ It reemphasized this again, at ¶227, by stating,

“the vacuum exists on the basis that unlike other appointments, it was intended all throughout that appointment exclusively by the Executive was to be a mere transient or stop gap arrangement and it was to be replaced by a law made by the Parliament taking away the exclusive power of the Executive. This conclusion is clear and inevitable and the absence of law even after seven decades points to the vacuum.”

The proposed law does nothing to address this vacuum. On the contrary, it goes against the express opinion of the Court. It enacts a law that reinstates the original Article 324(2) and virtually makes the appointment mechanism an exclusive domain of the Executive. It also reinstates the apprehensions that an Executive-minded Election Commission would affect the conduct of free and fair elections, independent disposal of the Commission functions concerning political parties, and the exercise of an individual’s right to vote. It was only to address these concerns that the Court intervened in the first place. The proposed law fails to address any of these concerns, making it an unconstitutional exercise of power.

Lastly, there is a clear argument against an Executive-dominated Election Commission from the idea of democracy. The Indian Constitution constitutes a republic based on the idea of representative democracy, wherein freedom of thought and association allows for the creation of political parties that contests to lead constitutional institutions for a temporary period, only to cede power to its rivals in case the electorate demands so. If the Election Commission does not perform elections independently, the manifestation of representative democracy gets corrupted.

Concluding Remarks

The Election Commission, considered a fiercely independent institution, has been losing credibility for some time in India (for instance, see here, here, and here). The Supreme Court’s intervention was, therefore, crucial and urgent. Replacing the Chief Justice with a Union Minister in the Selection Commission shows that in proposing this law, the government had no incentive but to create an Executive-friendly Election Commission. India will vote to constitute its 18th Lok Sabha in less than a year. The Parliament is incapable of making any efforts to stop this Executive aggrandizement. It will now be up to the Supreme Court to decide if it gives a pass to the Executive for openly disregarding the Constitution and its ruling or makes a timely intervention.