The five-judge bench of the Supreme Court recently unanimously ruled that a high-powered committee consisting of the prime minister, the leader of the opposition or the largest opposition party in Lok Sabha and the Chief Justice of India must pick the chief election commissioner and the election commissioners. The Apex Court also made it clear that this will be subject to any law that is made by Parliament on this matter.

The government had argued that in the absence of such a law, the President has the constitutional power to make these appointments.

The verdict came on a PIL filed in 2015 challenging the constitutional validity of the practice of appointing members of the election commission. Now that the President appoints CEC and election commissioners on the advice of the government, they have a tenure of 6 years or up to the age of 65, whichever is earlier. The 20th Law Commission, in fact, headed by Justice AP Shah, in its 255th report on electoral reforms, which was submitted in March 2015, also recommended a three-member collegium to appoint the CEC and the election commissioners.

The Supreme Court did not have any substantive issue to deal with because there was no allegation before the court that the Election Commission had done something wrong in its functioning. So, this was rather intriguing because in law we call it 'abstract judicial review', where there is nothing substantive before the court but still the court will go ahead and state something.

When there is a legislative void, the courts have in the past done certain things to fill that void, but that has been done mostly in cases where there was a void in the absence of any law. But here it is slightly different in the sense that the court has chosen to amend the Constitution itself. The Constitution has given this power under Article 324 to Parliament, but since Parliament has not acted in the last seven decades, the supreme court has chosen to act and said that this is the system we want to be in place, and this system shall remain in place till the time parliament enacts the law.

With this verdict and the previous verdict of the Supreme Court creating a collegium for the appointment of Supreme Court and High Court judges, the entire system of judicial separation of powers has gone for the toss. The Supreme Court should have the power of judicial review, which is very important, but this power of judicial review is to be exercised where there are cases of violation of any fundamental rights or where there are any cases of executive or legislative excesses.

Here, there was nothing of that sort before this Court except a PIL filed in 2015 that was pending and was referred to a Constitution Bench. The main contention of the petitioner was to have a broad-based, high-powered committee, which would enhance the credibility of the election commission. There was no case that the Election Commission was biased or that it has done something blatantly wrong that needs to be corrected, and all this emanated from the fact that the appointment panel was not broad-based. We have a parliamentary democracy, so the president is supposed to act on the advice and recommendations of the cabinet. In this case, the Supreme Court is forcing the government to act on the aid and advice of a committee, which is alien to our constitution.

Electoral reform is an ongoing process and it is being done not just today but for the last 50 years. Many amendments have been made to the electoral laws. The specific issue with the judgment that has come is regarding the reform in the process of appointments. In the past, there used to be only one election commissioner; then it became a multi-member Election Commission, and since then, the functioning of the election commission has never been in question.

Our Election Commission is respected worldwide for conducting free and fair elections. So far as the main issue of appointment is concerned, even the Supreme Court has never questioned the functioning of the Election Commission. It has been said that probably there should be transparency in the appointment of the election commissions as well as the chief election commissioner.

Under the Constitution, it is the power of the executive to make appointments to this post, and that executive power is vested in the President of India, and that power is exercised by the President through the Council of Ministers on the aid and advice of the Council of Ministers. What was the provocation for the Supreme Court to appoint a committee? What was the fault found by the Supreme Court in the functioning of the Election Commission of India that necessitated the constitution of the committee itself? Is it just because there is a void and no law has been passed by the parliament in this respect?

There have been many cases in the past where the Supreme Court itself has said that this function falls in the legislative domain of the government and therefore the government should pass a law and the Supreme Court will not intervene. If the court asked for committees in the appointment of the Election Commission and the CEC, probably tomorrow the court will say the same in the appointment of the finance commission and CAG also because these too are constitutional bodies. Then why has the court not accepted the decision of the legislature when they wanted transparency in the appointment of the judges of the High Court as well as the Supreme Court? I think the same principle must be applied even regarding the appointment of judges for the High Court and the Supreme Court.

The Election Commission of India has been delivering timely elections with all fairness and credibility time and again, and I think the whole world knows about it. In fact, there is only one project, called the Electoral Integrity Project, which creates time series data on the integrity of collections worldwide and that database tells us that the Election Commission of India stands at the top of the highest group, i.e., very high electoral integrity. Therefore, it is undeniable that the Election Commission has been doing a sterling job.

However, there have been attempts in our country and in 1990, the Goswami Committee report on electoral reforms recommended a similar kind of structure. A constitution amendment bill was tabled in the Rajya Sabha in 1990 that recommended this kind of arrangement, in which the President shall appoint in consultation with the chairperson of the Rajya Sabha and the leader of the opposition in the Lok Sabha and the Rajya Sabha, which did not get enacted and was withdrawn in 1993. Besides that, in 2015 also, the Law Commission in its 255th report recommended that the leader of the opposition and the CJI should be part of the selection process, and based on their recommendation, the appointment should be made by the President.

There can be no doubt that it is a better proposition, with a broad-based panel recommending the names and then the president acting on them. The whole idea of the separation of powers being part of the so-called basic structure goes for a toss. In the case of Lokpal, or also in the case of the CBI director's appointment, where the CJI has been co-opted, supposing there is something wrong with the appointment, then where do we go? We ultimately must go to the Supreme Court, and CJI is the master of the roster, so you create a situation where there is an inherent conflict of interest.

In any case, the judiciary should be kept completely away from the executive exercise. In many cases, people keep citing the American Constitution, but in the American Constitution, there is a complete separation of powers. The latest constitutional system that has gone for complete separation of powers is Britain, where the Supreme Court of the United Kingdom is completely independent; there is no interference, or if there is, it has nothing to do with the legislature. So, the whole world is evolving towards a complete separation of powers, whereas in India, because of the parliamentary system of government, we cannot have a complete separation of powers, particularly between the executive and the legislature, but at least the judiciary is kept separate. But by co-opting the judiciary in the executive exercise, the judiciary is corrupting the constitutional system, which creates a conflict-of-interest situation.

These are various aspects of the Supreme Court's decision on the appointment of the Chief Election Commissioner and the Election Commissioners to the Election Commission of India, why and how it is necessary, and what needs to be done. In a parliamentary democracy, it is ultimately the parliament's right to enact a law or legislation on any issue, which includes the appointment of the CEC or the EC.

Author is an Advocate practicing in the High Court of Bombay.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]