New Delhi: Brushing aside the Modi government’s stiff opposition to its intervention in laying down a new procedure to appoint the Chief Election Commissioner and Election Commissioners, the Supreme Court said Thursday that it was a “myth” that the judiciary cannot make a law.
A constitution bench of the apex court led by Justice K.M. Joseph added that while “it is not open to the legislature to don the robes of a judge and arrogate to itself the judicial function”, courts “can make law” and that it would not amount to transgression of the “separation of powers” principle.
Separation of powers implies that each pillar of democracy — the executive, legislature and judiciary — performs separate functions and acts as separate entities. The separation precludes the concentration of excessive power by any branch of the government.
The SC Thursday ordered that election commissioners (EC) be appointed by the President of India on the advice of a panel consisting of the Prime Minister, leader of Opposition in the Lok Sabha (or leader of the largest opposition party), and the Chief Justice of India. The new process is similar to the one that chooses the director of the Central Bureau of Investigation (CBI).
The judgment has done away with the practice that has been in vogue in India since independence, under which ECs were appointed by President on the advice of a council of ministers.
While ordering the new mechanism, the court noted that topmost officers of the election watchdog are blessed with “nearly infinite powers” and, therefore, must “be chosen not by the executive exclusively and particularly without any objective yardstick”.
On the charge of judicial activism, the five-judge bench led by Justice Joseph said that under the Constitution, which clothes citizens with fundamental rights, besides tasking the State with achieving the goals declared in the Directive Principles, judicial activism, as opposed to a mere passive role, “may be the much-needed choice”.
But this activism must “have a sound judicial underpinning” and “cannot degenerate into a mere exercise of subjectivism”, the bench cautioned.
‘Final arbiter of what is law must be the court’
The system under which the CECs and ECs were so far appointed is laid out in the Constitution, which says the President shall make the appointments on the advice of the council of ministers. However, the Constitution also states that the said procedure shall be followed until Parliament makes a law on it.
Non-promulgation of a law for a new procedure of appointments triggered filing of a set of petitions in the top court in 2015. They demanded a change in the appointment process to make it more transparent and have an independent Election Commission.
Noting this lacuna, the court said the law had not been made despite various “noises and voices” made on the issue, and the “founding fathers” contemplating it. Absence of such a law “does create a void or vacuum”, the court observed while reasoning for judicial intervention in the matter.
The court also pointed out that it was obvious why political parties were not forthcoming with the law — it was because there is a “crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation”.
Delving into the concept of “demarcation of powers”, cited several times by successive governments to stall judicial intervention in policy matters, the constitution bench said Thursday that there is “no strict separation of powers in India, unlike the position in the United States of America and Australia”.
According to the bench, the “theory that courts cannot or do not make laws is a myth” which has been “exploded a long while ago”. The court further took note of a 2007 judgment in which the top court had dealt with the “favourite topic” of “separation of powers”.
But at the same time, the bench clarified, the value of this doctrine “lies in a delicate, but skillful and at the same time legitimate, balance being struck by the organs of the State in the exercise of their respective powers”.
The 2007 verdict written by Justice S.B. Sinha had observed: “Each organ of the State in terms of the constitutional scheme performs one or the other functions which have been assigned to the other organ. Although drafting of legislation and its implementation by and large are functions of the legislature and the executive respectively, it is too late in the day to say that the constitutional court’s role in that behalf is non-existent.”
According to the 2007 ruling, “judge-made law is now well recognised throughout the world”. “If one is to put the doctrine of separation of powers to such a rigidity, it would not have been possible for any superior court of any country, whether developed or developing, to create new rights through interpretative process, otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation,” the court had said.
The constitution bench Thursday conceded that courts are not a remedy for all “ills in a society” and that they “must not try to run a government nor behave like emperors”.
The judgment further explored the constitutional obligations cast upon the judiciary. It pointed out that a superior court can declare a law made by the legislature as invalid, while exercising its constitutional duty, and be within bounds and not accused of “transgressing the principle of separation of powers. It can even hold an amendment unconstitutional and not be charged for “not observing the limits set by the Constitution”.
If “separation of powers is part of the basic structure of the Constitution of India”, so is “judicial review”, the bench observed.
The court further remarked that “while it may be true that the Constitution is supreme and all disputes must finally attain repose under the aegis of the Constitution, in one sense the final arbiter of what is the law must be the court”.
Talking about the principle of separation of powers, the bench explained that it “is meant to prevent tyranny of power flowing from the assumption of excess power in one source”.
Right to vote is fundamental
On the “right to vote”, the five judges on the bench were unanimous in elevating its status as a constitutional right, but four of them restrained from issuing a declaration, opining it would be against “judicial discipline and propriety”.
This, the bench said, could not be done because a bench of similar strength had 17 years ago held that the right to vote was not a fundamental right but a statutory one.
While Justices Joseph, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar did not favour overruling the earlier verdict, Justice Ajay Rastogi was of the view that it was time for the constitution bench to go ahead and declare that the right to vote is a fundamental right.
The observations in the judgment are likely to make way for reviving the discussion on the right to vote and the possibility for the apex court to revisit the 2006 verdict. If the right to vote becomes a fundamental right, it gets protected from any interference that is likely to curtail it.
The two views on the right to vote examined the interpretation and limits set out in Article 326 of the Constitution that deals with elections to the House of People and to the Legislative Assembly of each state. The provision says that elections would be on the basis of voting by adults, meaning a citizen who is not less than 18 years of age.
Justice Joseph held in the majority view that the earlier judgments on the right to vote never dealt with the issue in specific.
The 17-year-old judgment which said that the right to vote was not fundamental pertained to the case of veteran journalist Kuldip Nayar. The verdict was concerning the validity of a certain amendment relating to domicile in a state for being elected to the council of states. However, according to the SC’s Thursday judgment, election to the council of states is not the same as House of People.
The order juxtaposed Article 326 with other parliamentary laws, such as the Representation of the People Act, to hold that every adult citizen, unless disqualified, becomes entitled to be listed in the electoral roll.
In his minority view on the debate, Justice Rastogi rejected outright the 2006 ruling and held it to be too restrictive on the right to vote. He felt that “it is time to declare (right to vote) as a fundamental right”. According to him, there are conflicting views on its status and, therefore, it gives the bench an opportunity to “authoritatively hold that the right to vote is not just a statutory right”.
(Edited by Nida Fatima Siddiqui)
Also read: ‘Regulator’s remit’ — SC setting wrong precedent with Adani panel, say SEBI ex-chiefs, economists