Know why Justice Katju disagrees with the Supreme Court's decision on the appointment of Election Commissioners

Amalendu Upadhyaya
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The Supreme Court decision on the appointment of Election Commissioners

The Indian Supreme Court has given a verdict that Election Commissioners shall be appointed by the President on the advice of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India.

I totally disagree with the decision.

It is a settled principle of interpretation of statutes that Courts cannot, in the garb of interpretation, amend a statute or substitute it with one of their own creation. Courts are supposed to interpret laws and apply them to cases before them. Making law, or amending it, is the job of the legislature.

There is broad separation of powers between the three organs of the state under our Constitution, and one organ cannot validly encroach into the domain of another (see Divisional Manager, Aravali Golf Club vs Chander Haas online ).

Article 324(2) of the Indian Constitution states :

”The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President”.

It is for Parliament to amend Article 324(2), as the provision itself states, not the Supreme Court. By this verdict the Court has created a body unknown to the Constitution. Thus the Court has practically amended Aricle 324(2) of the Constitution, something only Parliament can do vide Article 368 of the Constitution.

Justice Markandey Katju

Today’s decision of the Supreme Court is the victory of democracy. SC on Election Commission

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