Should the Supreme Court have done more to ensure free and fair elections?

Looking back at the recently concluded Lok Sabha election cycle, the longest in India’s history, it is easy not to take notice of the role the Supreme Court has played in the conduct of the elections.

After all, the Supreme Court has adopted a hands-off approach in relation to almost all election-related cases that it heard in the last six weeks, deferring to the authority of the Election Commission of India.

However, the refusal to act in most cases impacted the election in significant ways.

There is no consensus among legal experts on whether the court’s approach is desirable, especially in light of the alleged abdication by the Election Commission of its function to conduct the election in a free and fair manner.

Hands-off approach

In March last year, a five-judge Constitution bench of the Supreme Court had changed the process for appointment of election commissioners in order to secure their independence. The court had created a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India to make appointments to the Election Commission until Parliament enacted a law on the subject.

However, in December, the Parliament passed a law that created a new committee to nominate members to the Election Commission comprising the Prime Minister, the Leader of Opposition and a Union Cabinet Minister – rather than the Chief Justice of India, as provided by the judgment.

Scroll had reported that this law went against the spirit of the judgment by bringing the matter of selecting election commissioners, which the judgment sought to shield from executive influence, back within the Centre’s control.

This law was challenged in January this year. A two-judge bench of the court had refused to stay the law. In March, as per the new law, two new election commissioners were appointed by the Union government. Again, the appointments were challenged before the Supreme Court.

However, the court refused to stay the appointments as well as the law on the ground that the Lok Sabha election was about to commence.

In February, another five-judge Constitution bench of the Supreme Court had held the Union government’s electoral bonds scheme as unconstitutional and quashed it. However, it decided the petitions challenging the scheme seven years after they had been filed. The bench had held substantive hearings in the matter only in October and November of last year.

The Supreme Court had refused to stay the scheme in 2021.

As a result of the court’s delay in hearing the matter, the unconstitutional scheme had been in operation from 2018 onward. The ruling party at the Centre, the Bharatiya Janata Party, was the largest beneficiary of the scheme and could utilise the money it gained from the scheme on the current election, as well as the previous general election and all assembly elections since 2018.

On April 15, the Supreme Court rejected a petition seeking arrangements to be made by the Election Commission to enable internally displaced persons from Manipur settled outside the state to cast their votes in the election by setting up special polling booths in the states to which the displaced persons had moved.

On April 26, the court dismissed pleas seeking the tallying of all Voter Verified Paper Audit Trail slips to verify votes cast through Electronic Voting Machines.

On May 14, it refused to entertain a plea petition seeking to disqualify Prime Minister Narendra Modi from elections for allegedly making hate speeches and invoking religion during campaigning.

On May 24, it declined to pass interim directions to the Election Commission to publicly release the booth-wise absolute number of voters amid the Lok Sabha elections. However, on May 25 the Election Commission ended up publishing the absolute number of votes cast in each parliamentary constituency during the first five phases of the election.

It only bucked its hands-off approach in one case, when on May 10 it provided interim bail to Delhi Chief Minister and Aam Aadmi Party national convenor Arvind Kejriwal in a money laundering case.

In a first-of-its-kind verdict, the court allowed Kejriwal temporary bail only to campaign for the Lok Sabha election.

However, even here, the court failed to uniformly apply this principle. It rejected the interim bail applications of former Jharkhand chief minister and the working president of the Jharkhand Mukti Morcha party Hemant Soren and the AAP’s Punjab MLA Jaswant Singh, both also arrested in money laundering cases. Both had sought to rely on the precedent of the bail granted to Kejriwal.

Election Commission missing in action

A ripple effect of the Supreme Court’s insistence on not interfering with the election commissioner appointment law has been the Election Commission’s failure to meaningfully act against BJP leaders’ repeated poll code violations. This has been flagged by retired bureaucrats as well as a former Supreme Court judge while a recent study by the Centre for the Study of Developing Societies and Lokniti showed decreasing public trust over the functioning of the Election Commission.

“There was a strong case for staying the 2023 law and the installation of the present Election Commission since the law clearly breached the rationale of [the court’s March 2023 judgment] that emphasised the need for an independent selection committee to ensure that independent commissioners are appointed,” senior lawyer and writer Kaleeswaram Raj, who practices in the Supreme Court and the Kerala High Court, told Scroll.

Raj had been part of the legal teams that successfully challenged the election commissioner appointment process in 2023 and failed to secure a stay on the subsequently passed law.

“The country had to pay a heavy cost due to the judicial indulgence shown,” he said.

Constitutional historian and former bureaucrat SN Sahu, who served as press secretary to former President of India KR Narayanan and director in Prime Minister Manmohan Singh’s office, told Scroll that the judiciary ought to have promptly intervened and taken action against BJP leaders for their communal appeals for votes.

“Securing the purity and integrity of the electoral process is not the sole duty of the Election Commission,” he said. According to him, when the Commission fails in its duty, “other organs of the government, including the legislature, the executive and the judiciary also have key roles to play”.

Raj agreed. “The role of the Supreme Court with respect to election has been highly disappointing,” he said. He added that the court had “clearly failed in carrying out its constitutional function as against the executive, Parliament and the Election Commission itself”.

Should the judiciary have stepped in?

Some legal experts, though, don’t think that the judiciary has the institutional capacity to fill in the vacuum of effective regulation of the election.

“Article 324 of the Constitution of India squarely vests the superintendence, direction and control of elections with the Election Commission,” Ritwika Sharma, senior resident fellow and lead at the legal policy think-tank Vidhi’s Centre for Constitutional Law told Scroll.

“The Supreme Court has decided on the more principled issues concerning elections and electoral reforms,” she continued. “But it has remained hands-off with respect to the more practical issues concerning the conduct of elections. ”

Sharma warned that if model code of conduct violations begin to be taken cognisance of by the judiciary, they will enter the judicial process and get mired in inevitable delays.

“Scepticism concerning the independence of the Election Commission should not translate to placing a greater responsibility on the judiciary to address violations of the poll code, given how overburdened the judicial process is,” she said.

Shubhankar Dam, chair professor of public law and governance at the University of Portsmouth, agreed. “Courts don’t want to, and shouldn’t, micromanage elections,” he said.

He added that “the text of the Constitution has never prevented the Supreme Court from doing anything.” Nevertheless, “the main reason why it has chosen not to intervene in elections is its institutional limitations,” he said.

Raj disagreed on this. “The hands-off approach has relevance only when the court's order interferes with an ongoing election,” he said. “It is unconvincing when the court adopts such an approach when the direction sought for will, in no way, meddle with the polls.”

“Article 324 contemplates functional autonomy for the commission,” he emphasised. “It doesn't create any embargo in the power of judicial review of the Supreme Court, as long as the court doesn't stall an ongoing election.”

On the other hand, Sharma said that solutions must be sought from the Election Commission, given its vast repository of power under Article 324. She reminded that in the past as well, the commission had “taken stern action in case of violations of the model code of conduct, which it is fully empowered to do.”

According to her, “despite the Election Commission not doing enough, or perhaps because of that, difficult questions must be asked of the government and the commission itself about how a free and fair election can be conducted.”

“More than institutional mechanisms, public opinion could drive the Election Commission to introspect and discharge its functions responsibly,” she said.

Dam offered a more cynical outlook. “I am sceptical as to whether there any good solutions to this,” he said.

According to him, “it is a myth that the Election Commission has suddenly become craven to the government.” He said that the model code of conduct has never been properly imposed in India and that the Election Commission “has always been influenced by the ruling party.”

“What has changed is the way in which hate speech is amplified due to social media,” he said. “Today, the impact and potential for harm of hate speech is significantly higher.”