Was The CJI Panel Just A Stop-Gap? Advocate Defends Government's New ECI Law In SC

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[00:00:00]I'm borrowing the language of Anup Baranwal in writing our judgment that this is law.

[00:00:05]Well, there's one possible >> copyright violation There's one possible Wait, wait.

[00:00:09]If the Supreme Court speaking, we will just simply borrow that language. Your lordship can do that.

[00:00:13]Passing a 142 order Your lordship can do that, but then that's why that's why I think not that I am I am asking the court to desist from exploring this issue. I will only lay bare the contours of the debate which will necessarily be involved in it.

[00:00:25]And that question is a very important question. I'll answer that after I read Anup Baranwal. Yes, yes.

[00:00:30]We are not going to say anything based on what Anup Baranwal has really laid down with regard to inclusion of the Chief Justice opinion.

[00:00:42]Please, please remove it from No, I'm not even I'm not even looking at it.

[00:00:46]Oh, no, no. The Chief Justice of India's inclusion will make No, no. I'm not I'm not looking at it at all. so much better that no one else can be considered. I am not on that at all. In fact, I don't want to enter into a debate where which will be the best method. I I think in this matter If at all >> Yes, sir. give it to Parliament. I I'm not entering Parliament is enjoined under the Constitution to legislate. We are not to legislate.

[00:01:07]We are only to interpret the law. And if at all we are with them, we can say that yes, for XYZ reasons we feel that 14 is violated.

[00:01:16]Only to this extent, not on the basis of Anup Baranwal. I know.

[00:01:20]I know that's why I thought I should also state it. If we if I can express my mind further, you know, after the Constitution Constitution is the fountainhead of all legislation.

[00:01:34]Which legislation according to you has the next importance in the entire list of central legislations?

[00:01:44]We have thousands of legislation. Yes. If one were to ask you Yes. after the Constitution Yes. which legislation has prime of place or pride of place in the entire set of legislations, which one will you put?

[00:01:59]No, I then I will have to classify them.

[00:02:01]In the sense that he lost what you have very important question and answer that.

[00:02:05]If I look at only an an independent judiciary and ultimately if there is no independent judiciary, then there is we have I think S.G. Jayasinghani said women captured. We are not talking about a women captured of a rule of law. He's best He's best captured and comprehended with an independent judiciary. That's one aspect of the matter. We are talking about institution which have been conceived under the constitution. Each one of them occupying their distinct spheres and spheres. And they get connected in in in a way so that each and every department of governance economic, social, political, each one of them I think deserve their special important.

[00:02:40]So, if I don't answer this question only saying this institution, this law is the foremost, perhaps I would be missing the connection between democratic governance and our constitution. If I say election laws I I I'm I'm coming I'm coming to Am I wrong? I'm coming to I'm coming You have just hit the bull. I I You have taken the bull by the I You say democracy.

[00:02:56]>> I'm coming to that. Without democracy, you have nothing. I I I In fact, the same constituent assembly which enacted it. No, no, no, nobody said Of course Who is Who is saying not not For instance, in Malaysia. Let us say let's Sir, I I waited We are just talking No, not to We are not talking about Malaysia where somebody came from England and drafted the constitution. We are not talking about that. So, we of course we are. But then I was Why did I say democracy is important? But even in the context of democracy, you may have a free and fair election.

[00:03:23]But the the social economic and political governance part of it will be more and more I think you know more more expansively governed by our institutions of justice.

[00:03:35]You may have a small problems here in free and fair election. We manage them with a little dent here and there.

[00:03:40]But if you don't have an independent institution of judiciary, we have fundamental problems. Today I'll tell you what's what's happening in Nepal.

[00:03:47]I yesterday I received some very intensive calls from four three judges, it is it's unimaginable what's happening.

[00:03:56]Either they are asked to resign or face impeachment.

[00:03:59]So, fortunately for our country, none of those things which have happened in our neighboring countries have ever invaded our democratic process.

[00:04:07]Fortunately for these two institutions, the free and fair election and the institution of justice.

[00:04:11]And the parliament to a large extent has been responsible. There have been aberration, I'm not getting into the question.

[00:04:16]Therefore, if we if we had to go further, they are all institutionally connected. And in in the course of Anup Baranwal, comparison made with the controller and auditor general. He doesn't occupy such an important place as an election commissioner. Of course, yes. But if if the government can manipulate a controller and auditor general, what happens to our budgets?

[00:04:32]And in fact, lots of you will know that in many courts all over the world today, and there is a there is an increasing tendency on courts to look at budgeting constraints.

[00:04:40]Financial management and budgets.

[00:04:42]Therefore, all these are so well integrally connected.

[00:04:45]So, when the courts therefore enter into those fundamental questions as to what should be a policy and what should be a law.

[00:04:51]Not that the court will be invariably kept away from thinking on those lines.

[00:04:55]There is one set of reasoning among For instance, in 1990 for the first time, we had a book which published a global expansion of judicial power.

[00:05:02]First time we began talking about it.

[00:05:03]Today, we have voluminous literature on the subject.

[00:05:06]And why so? Because whatever you consider about democracy about 50, 60, 70 years ago, the the Cold War area and then new communist countries opening up into democracy, we have new dimensions of governance which are challenging.

[00:05:17]Which are very very challenging.

[00:05:19]Therefore, the role that the court can play as a deliberative mechanism. You deliberate.

[00:05:24]It is a it's a matter of deliberation between between the government and the court. And in that process, whatever deliberation happen will be important consideration and and which the parliament or the executive will pick up. They should not be certainly different than all that. So, I'm not saying that. So, but what is important is if Anup Baranwal, it traced the entire history.

[00:05:42]It traced the entire history of what is what is an independent election body. From constituent assembly debates to various things which happened during a long period of time.

[00:05:51]Obviously, to put it very fairly to the court, obviously the court that is there not something to be done about this matter? Is there a need for a lot of you looking at it?

[00:05:59]I I thought for a for a time while arguing the matter before the court, well there will be need for the law, but there is a there must be a trigger point for the law to be enacted.

[00:06:07]Something worrying, something too deeply concerning. In fact, I use my submission in the absence of a trigger point, probably the court will be a little slow in going beyond and and and saying there's a need for a law.

[00:06:19]So, having said that, Anup Baranwal is a is what did I say history? It captures the entire narration of of several well-minded people, commissions reports, law commissions.

[00:06:28]And and what does it ultimately do? It It stamps its It gives a stamp of approval on one or more or the principle that that must be an independent election commission.

[00:06:38]But the one one another aspect was it can't be exclusively in the hands of the executive.

[00:06:44]Now, that takes us to the question, who will determine what is exclusive? What will not be exclusive? To what extent exclusive? Who will take up this question?

[00:06:52]So, different commission reports said this will not be exclusive, this will not be exclusive. So, different formulas were suggested. Therefore, the courts wisely did not say that I pick up this formula as the only correct formula.

[00:07:03]And the court also knew that given our democratic separation of powers issue, court said, all right, please I bring to your attention the importance of looking into this matter. If you think parliament think that this is how it can be looked at.

[00:07:14]I offer you all our reflections on this judgment before you.

[00:07:18]I will only I will only be very humbly say that the Anup Baranwal is a collection and gathering of the reflections of the court at the highest level persuaded by certain concerns and the need for independent election commission.

[00:07:29]But to put it beyond that to put it beyond that, I've been arguing before the court to say that pick up something from that court. And therefore, if the if the parliament has not as if a non-application of mind things like that. I think they're reducing parliament to an executive authority.

[00:07:42]So, it's a it's a very difficult uh uh complex area. And I'm not saying that the court may not have any reflections at all.

[00:07:49]But to say the reflections will ultimately bind the Parliament in some way or the other. That's where I thought Anup Baranwal as as slight as probably uh unknowingly or whatever it is. I wouldn't put it like that. I can't read the judge's mind. And gone into that framework.

[00:08:04]It it it thought if the Parliament were to look at our reflections seriously, it will take us seriously.

[00:08:10]And if Anup Baranwal has said all those four and five to be considered by the Parliament, then Parliament could have voted in favor of any one of them.

[00:08:17]If Anup Baranwal has not said that, it only picked up an interim arrangement, can we then say Anup Baranwal place extraordinary importance and emphasis on the only one thing that they wanted to be an interim arrangement? Probably I would say no.

[00:08:28]The entire argument of the petitioner say that having given that the best thing Parliament could have done is don't deviate from it. Pick it up. The best solution given by the court. Why do you have any other thinking on the subject?

[00:08:39]So, I'm not able to read Anup Baranwal in that manner.

[00:08:42]If it can't be read like that, then that's why I thought and this law we look at independent of Anup Baranwal.

[00:08:48]Again, I find we are caught in a fix.

[00:08:51]Cuz the whole thing is part of our judicial history now. That's why I say judicial history.

[00:08:55]So, independence exclusive executive presence etc. have become like thoughts thoughts in the political process.

[00:09:02]So, it can be part of a the parliamentary debate, part of a social debate. Anybody will ask this question, exclusive executive authority is free is bad for a free and fair election. But I would probably go further and say unless this exclusivity of executive presence has always demonstrated and is always likely to demonstrate the lack of a complete independence of an election commission, then one can go forward.

[00:09:23]But that's going to be a very difficult proposition to establish.

[00:09:26]It is not like I have said something which is a truism.

[00:09:30]It can't be taken as a truism.

[00:09:32]So, may I proceed further, my lord?

[00:09:35]I was reading at the paragraph 40 become to kindly come to paragraph 42.

[00:09:41]43 This honorable court noted in the so also This court looked noted the fact it exercise the powers under 32 article 142.

[00:09:50]Guidelines and directions have been issued in large number of cases.

[00:09:53]And that issues and guidelines and direction is a well settled practice which has taken firm roots in our constitutional jurisprudence. And that such exercise was essential to fill the void in the absence of suitable legislation to cover the field.

[00:10:04]Consequently, the court issued various directions in the following preamble. As pointed in Vishaka, duty of the executive to fill the vacuum by executive orders because the field is co-terminus with that of the legislature and where there is inaction with executive for whatever reason, judiciary must step up in the exercise of its constitutional obligation under the aforesaid provision to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field. I stop you for a minute. Then who will give an answer to what is the proper legislation?

[00:10:31]So somebody will will our lordship say yes yes Anup Manwal deserves to be considered with parliament. We send the matter back to parliament. Recently I was arguing matter where the court thought will revert the matter for a decision back in regard to some gas and oil field contract extension. And if the matter is to go back to executive authority, well you can always reconsider a matter. But parliament is not an executive authority.

[00:10:54]You can do that.

[00:10:56]Now I I only want to even if even if your lordship even if the court were to do that in with the highest level of constitutional concern.