Introduction

Recently, the Supreme Court of India (‘SC’) in Anoop Baranwal v. Union of India (‘Anoop Baranwal’) overhauled the appointment procedure for the members of the Election Commission of India (‘ECI’), a fourth branch institution. This was done to secure its independence from the executive. The SC has proposed a three-member committee comprising of the Prime Minister, the Leader of the Opposition or the leader of the single largest party in the Lok Sabha and the Chief Justice of India (‘CJI’). This is as a stop-gap measure until a law is promulgated by the legislature. In doing so, it has modified the procedure laid out in Article 324(2) of the Indian Constitution, which entrusts such power on the President to make such appointments (under the aid and advice of the Council of Ministers), by filling in the legislative ‘gap’ until a law is passed.

On paper, this decision appears to be a positive act of judicial interference to secure a responsible and structurally independent ECI, promoting the tenets of a representative democracy, as envisaged by the framers of the Constitution. However, when Article 324(2) of the Indian Constitution already stipulates the manner of appointment of the members of the ECI, the Court in the name of judicial review, has recognised a gap where there was none, and in the process, undermined the legislative power to formulate the ‘law’. Not only does this potentially threaten separation of powers in the Indian democracy, but also seeks to potentially disrupt the delicate balance between legal and political constitutionalism, as would be argued in this article.

In light of this, the authors in Part I seek to lay out a theoretical framework in favour of a need to maintain this balance between legal and political constitutionalism which must guide any form of constitutional interpretation undertaken by the judiciary. In Part II, the authors shall demonstrate that the SC in Anoop Baranwal has in fact, disrupted this balance by identifying a ‘gap’ in the law where there was none, and by undermining the role of the legislature by bringing about a stop-gap measure, which operates as a temporary constitutional amendment.

The Need for a Balance between Legal and Political Constitutionalism

To analyse the extent of judicial overreach in the case at hand, it is necessary to lay out the core foundations of ‘legal constitutionalism’ and ‘political constitutionalism’, and the extent of judicial review. At its core, legal constitutionalism suggests that the legislators and the citizens voting them into power may not necessarily embrace the values required for a constitutional democracy. It is the role of the judges to protect the same. Through this, the judges act as a key ‘check’ or restraint on the power of the legislature, evaluating whether legislations satisfy core constitutional values. Such values extend to not only protecting fundamental rights, but also an evaluation of competing interests considered by the legislature such as ‘public order’. However, notably, such a check or restraint exercised by the SC, revolves around evaluating the ‘correctness’ of the legislations through judicial scrutiny, and does not extend to the judiciary usurping the role of the legislature in prescribing legislations. Doing otherwise, threatens to compromise upon the ‘political constitutionalism’ of the legislature.

In political constitutionalism, the legislature is equally, if not even more legitimate and ‘capable’ than the judiciary, at resolving both fundamental and substantive disagreements. Instead of ensuring judicial oversight over the legislature to enhance the democratic process, it in turn emphasises upon improving the electoral and parliamentary systems. This would be through ensuring proportional representation and parliamentary scrutiny. Moreover, it focuses upon the importance of political compromises through meaningful deliberation and debate between political parties, competing for the support of diverse interest groups who in turn, have cross-cutting interests. By focusing on the decision-making process and not solely its outcome, by ensuring transparency in participation and balancing institutions, political constitutionalism locates the “constitutionality of legislation within the political and not the legal system”. Through this, we can observe that while legal constitutionalism conceptualises the judicial policing of rights and scrutiny as the key to constitutional culture, political constitutionalism views democratic participation as central to the same, allowing the citizens to identify as a part of the constitutional system.

Maintaining the Balance in India

However, in the Indian context, certain caveats inevitably apply. This is because the legislative and political structures in India are riddled with several democratic weaknesses, extending from the influence of the Governor, partisan speakers, ordinance powers, and a lack of intra-party democracy. Consequently, the visibility and efficacy of constraints on legislative power as conceptualised by political constitutionalism may vary. However, this does not undermine the argument for political constitutionalism, as it necessitates crucial features of a democratic constitutional system, by prioritising public opinion, compromise and contestation through officials, elected by the people. This is because the argument in favour of political constitutionalism is complemented by Dr. B.R. Ambedkar’s preference for a parliamentary form of government, in the belief that an active parliament (that broadly mirrors differences of interests/identities in a society) can ensure continuous accountability through oversight of the executive branch. By focusing on the political, an active parliament is in line with his idea of constitutionalism, which requires the citizens to be vigilant against unbridled populism by acting as a check on the culture of ‘hero-worship’. This is especially in light of charismatic leaders invoking popular support, which has the potential of undermining the growth of rule-based institutions.

To truly facilitate the functioning of Indian democracy, we must strive to strike a balance between legal and political constitutionalism. Both these forms do not exist simply in isolation or lay at opposite ends, but must cross-fertilise and enhance the democratic set-up. To achieve this, the delicate line between preserving the legitimacy of the legislature by improving the democratic structures in the country, and by facilitating the effective functioning of the courts to ‘check’ or scrutinise legislative decisions, is essential. However, one must ensure that the function of either branch is not usurped by the other, to truly achieve this balance. Such a balance would be in line with Ackerman’s conception of ‘The New Separation of Powers’ as per which, the fundamental purpose of such a separation must be to enhance the democratic functioning of the country. A disruption of this balance becomes particularly relevant in the present case, because of the usurpation of the legislative power by the judiciary, as would be demonstrated in this article.

Conclusion

In Part I of this article, the authors have attempted to lay down the theoretical basis behind the need to maintain the balance between legal and political constitutionalism in India. This framework shall serve as the bedrock for the analysis undertaken in Part II, where the authors shall demonstrate that the SC in its decision in Anoop Baranwal has in fact, altered the balance by traversing beyond its traditional role of ‘interpreting’ the existing constitutional provisions under Article 324 (2) of the Constitution, to amend the same, which is an exercise of ‘judicial creativity’. The authors propose an alternative approach which could have guided the SC in its decision, and would help maintain the delicate balance sought to be achieved.

[Ed Note: This article has been edited by Archita Satish and published by Avani Vijay from the Student Editorial Team]