Anoop Baranwal v Union of India

Facts

• Article 324(2) provides that the Chief Election Commissioner and other Election Commissioners shall be appointed by the President, subject to the provisions of any law made by Parliament.
• Parliament had enacted no law governing the selection of persons for appointment, though it had legislated on conditions of service and the transaction of business.
• In consequence, appointments had for over seventy years been made by the President on the advice of the Union Council of Ministers, that is on the choice of the executive of the day.
• Petitioners contended that the Commission conducts the very elections at which the executive seeks renewal, so exclusive executive control over its composition is a structural conflict of interest.
• Attention was also drawn to the asymmetry in Art.324(5): the Chief Election Commissioner enjoys the protection of a Judge of the Supreme Court, while other Election Commissioners may be removed on his recommendation.
• The Union contended that the matter was one for Parliament and that the Court could not legislate.

Issue

1. Whether appointment of Election Commissioners by the executive alone is consistent with the independence of the Election Commission; and what the Court may do in the absence of the legislation contemplated by Art.324(2).

Held

• The Court held that free and fair elections are part of the basic structure, and that the independence of the body which conducts them is a necessary condition of that guarantee. Exclusive executive control over appointments cannot be reconciled with it, since the Commission superintends the elections at which the appointing authority itself seeks re-election. The words "subject to the provisions of any law made by Parliament" in Art.324(2) contemplate a legislative framework, and the seventy year vacuum could not be allowed to leave the matter permanently with the executive. Exercising its jurisdiction to fill the gap, the Court directed that until Parliament legislates, appointments be made by the President on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition in the House of the People, and the Chief Justice of India, with provision for the leader of the largest opposition party where there is no recognised Leader of the Opposition. The Court also recommended, without directing, that the other Election Commissioners be given the same protection of tenure as the Chief Election Commissioner, and that a permanent secretariat and an independent budget be provided.

Ratio Decidendi

Every organ of the State derives its authority from an election, so the body conducting elections stands at the head of the chain of constitutional legitimacy. If that body owes its composition to the government of the day, the legitimacy it certifies is compromised at the source. Where the Constitution contemplates a law and none has been made, the resulting vacuum cannot be construed as a grant of unlimited discretion to the executive, and the Court may supply an interim mechanism which yields to legislation when it comes.