Thread by @gautambhatia88

Have seen some confusion about the new Election Commissioners Bill, and what the SC held in its judgment earlier this year. Here is a brief thread to clear a few things up.

Earlier this year, a 5J-bench of the SC passed a detailed judgment on the independence of the EC. [1/n]

The SC was examining Article 324(2) of the Constitution, which says that appointment of the CEC and ECs shall "subject to the provisions of any law made in that behalf by Parliament, be made by the President."

Article 324: [2/n]indiankanoon.org/doc/950881/

Examining this provision in light of its context, its history, the debates in the Constituent Assembly, and the role of the EC, the Court found that the intention behind Article 324(2) had been that Parliament would soon pass a detailed law securing an *independent* EC. [3/n]

The reason for this is that a Constitution can't lay down granular, institutional details - that is a job for Parliament.

Until Parliament acted, the power of appointment was given to the President, as a temporary, stop-gap measure. [4/n]

But Parliament never acted, because it suited successive governments to retain control over appointments to the Election Commission via the President. So the stop-gap became permanent, and the law securing the independence of the EC was never framed. [5/n]

SC examined all this history in great detail, and held that executive control over the EC was neither the intent of Article 324, nor was it consistent with the EC being an *independent* body.

Executive appointing EC is like a player getting to appoint the referee. [6/n]

So SC had to intervene. At the same time, it had to respect the fact that Article 324 specifically says that it is Parliament that must make the law for appointment of ECs.

SC thus proposed an interim procedure to fill the gap: a committee of PM, LOP, and CJI. [7/n]

SC said that this arrangement would hold the field until Parliament performed its duty under Article 324 and made a law: a law that *adequately secured* the independence of the EC from executive dominance. [8/n]

This is crucial, because there are two ways in which the judgment is being misunderstood.

The SC did not say that the CJI *has* to be on the appointments committee under the future law. Thus, the mere fact that the new bill removes the CJI is not the reason why it's bad. [9/n]

But nor did SC say that *any* law would be consistent with the Constitution. The law would have to ensure that the EC was adequately insulated from executive dominance, because the referee has to be impartial.

The Election Commissioners Bill obviously fails that test. [10/n]

For a detailed analysis of the judgment, looking at its reasoning, see:



[11/n]indconlawphil.wordpress.com/2023/03/03/dec…

Was the judgment judicial overreach? No. Rather, it reinforced the separation of powers. Election Commissions belong to a set of institutions called "fourth branch institutions", which must be independent of government.

For an analysis, see:

[12/n]indconlawphil.wordpress.com/2023/03/04/dec…

Such institutions must also be accountable at two levels - structurally and operationally. This, again, needs insulation from the executive at the appointments stage (and other stages, such as salaries and remuneration).

For an analysis, see:



[13/n]indconlawphil.wordpress.com/2023/03/09/dec…

And finally, securing the independence of the Election Commission is vital for the purposes of representative democracy.

On all these counts, the SC judgment was correct. For an analysis, see:



[14/n]indconlawphil.wordpress.com/2023/03/10/dec…

It is also important to note that Rastogi J's concurring opinion in this judgment has a table looking at appointment practices in other democracies (see paragraph 107), and he shows how India is very much an outlier in basically giving to the PM control over EC appts. (15/n]

Most democracies ensure a non-partisan appointments committee - they either have a mix of ruling and opposition parties with neither having a decisive majority, or multi-stakeholder commissions with members of civil society etc. [16/n]

Had the Election Commissioners Bill adopted one of these models, then it would have made absolutely no difference that the CJI was dropped from the committee. Once again, the CJI being on the committee was not the main takeaway of the SC judgment. It was EC independence. [17/n]

The SC judgment thus left Parliament with a whole menu of legislative options, with one constitutional condition - that whatever Parliament chose from the menu had to be consistent with structural and operational independence. [18/n]

And that is *exactly* the condition that the Bill has breached, by formalising executive control over the EC.

Which is also why this whole argument that the Bill is consistent with the SC judgment but against its "spirit" is misleading. [19/n]

There is no question of the "spirit" of the judgment, whatever that means. The Bill is unconstitutional because it demolishes EC independence, as articulated by the judgment.

As for whether the SC will strike it down (assuming it becomes law) - we shall find out.

[20/20].