Judicial overreach: India is a parliamentary democracy in which three arms look after the nation: the legislative, executive, and judiciary. Systems like India’s are run on the basic principle of segregation of power; thus, it is often suggested that the three must not interfere in the workings of others and confine themselves to their own arenas.
However, it happens to be a common human urge to show their might. Probably, this would have been the reason behind former Prime Minister Late Rajiv Gandhi’s government overturning the Supreme Court’s judgement in the infamous Shah Bano case. The next such instance can be traced back to the days of Indira Gandhi.
Gandhi amended the constitution of India to nullify the order passed by the Allahabad High Court. The amendment said that the elections of the President, Vice President, Prime Minister, and Lok Sabha Speaker cannot be challenged in any court in the country. The matter is true the other way around as well; often the judiciary is found to be interfering with the workings of the legislature as well as the executive.
There have been many instances of the same, like the ban on firecrackers, the ban on sale of liquor near national highways, and the striking down of the NJAC. The recent decision of the Supreme Court regarding the appointment of election commissioners is being seen in the same light. Rightly said, Old habits die hard.
Judicial overreach: A bit about the Election Commission
The Indian Constitution, written by a panel headed by Dr. Bhimrao Ambedkar, is hailed as the supreme document that protects democracy and human rights in the country. As per Article 324 of the same document, i.e., the Indian Constitution, the Election Commission is an independent and impartially functioning body.
The commission was established in accordance with the constitution on January 25, 1950, and every year, January 25 is celebrated as National Voters’ Day. The commission deals with the elections to the Lok Sabha, Rajya Sabha, and Legislative Assemblies and is headed by the Chief Election Commissioner along with two other Election Commissioners. The chief election commissioner is appointed by the President of India for a term of six years.
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At present, the constitution does not lay down a specific legislative process for the appointment of the CECs and ECs; thus, till now, the President has been making the appointments on the advice of the Union Council of Ministers, headed by the Prime Minister of India.
I seriously apologise if the video sounded more like a political class till now, but I did not have any other option than explaining the earlier process to make you understand what has changed by the recent order of the apex court and what will be the far-reaching implications. Let’s see what the 5-judge bench of the Supreme Court ruled regarding the appointment of chief election commissioners and election commissioners.
The Supreme Court defines a new system to appoint election commissioners
The Supreme Court of India has passed a unanimous ruling regarding the appointment of the chief election commissioner and election commissioners. As per the court order, from now on, the commissioners would be appointed by a high-powered committee consisting of the Prime Minister of the country, the Leader of the Opposition in Lok Sabha, and the Chief Justice of India.
The decision was made while hearing a PIL by a five-judge bench led by Justice Joseph along with Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C. T. Ravikumar. The judges opined that the committee is necessary to protect the independence of the election body, raising eyebrows: was it not free till now? The court has also said, “We make it clear that this will be subject to any law to be made by Parliament.”
What does it mean? This means that Parliament can undo the effect of the SC verdict by bringing in a new law on the issue. But will it? Only time will tell, as for now the ruling party has maintained its silence over the issue. While the opposition has hailed the order, calling it landmark and historic, the BJP is yet to form an official opinion, while a section of leaders have called it an exemplary case of judicial overreach.
But why has the apex court done so? It is said that since there was no law made by the Parliament on this issue, the court had to step in to fill the “constitutional vaccum”. And from here, it leads to the larger question of the separation of powers and whether the judiciary is overstepping its role in filling this gap in the law.
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Ensuring independence or judicial overreach
The late Arun Jaitley once said, “Step-by-step, brick-by-brick, the edifice of India’s legislature is being destroyed,” while cautioning legislators against ceding more powers to the judiciary. The same emotion can be felt in the political circles of India.
While many have pointed out that the apex court has asked the government to follow a format that the court itself rejected for appointing judges under the National Judicial Appointment Commission (NJAC) brought in by the Modi government regarding the appointment of judges in the court,
In simple terms, it can be said that what was defined as the prerogative of the President of India alone in the Constitution, through the order, has been hijacked by the judiciary. And to surprise, it has been done in the name of safeguarding democracy, whose basic principle vouches for segregation of power.
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The presence of opposition leaders in such a committee could still be advocated in the name of impartiality. But in no way can the presence of the judiciary be justified, thus pushing for the loaded term “judicial overreach.
Before I end, I have some questions for you to think about:
- Through the decision, hasn’t the integrity of the election body been questioned?
- Is the Supreme Court, in the name of the independence of the election commission, violating the Constitution?
- Are the ones questioning the neutrality of the chief justice of India wrong?
- And now the biggest one: if there is no interference when it comes to the appointment of the CJI, how does the Judiciary find it okay to force themselves into selecting something that has been a prerogative of the President?
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