Attorney General R. Venkataramani on Thursday defended the constitutional validity of Sections 6, 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 before the Supreme Court, which are under challenge in a batch of petitions alleging that the new appointment mechanism gives excessive control to the executive and undermines the independence of the Election Commission.

Opposing the challenge, the Attorney General argued that “potential for abuse” or speculative apprehensions regarding future conduct of Election Commissioners could not by themselves render the legislation unconstitutional. He submitted that there existed “no identifiable wrong, a trigger point, to warrant any judicial interference,” and cautioned the Court against striking down the law merely on hypothetical concerns about institutional independence.

Scope of Judicial Review Over Parliament’s EC Appointments Law

Attorney General argued that Parliament could not be compelled to legislate strictly in terms of the Supreme Court’s earlier ruling in Anoop Baranwal v. Union of India, 2023 (6) SCC 1, and cautioned against converting judicial observations into binding restrictions on legislative choices.

Raising concerns about the limits of judicial review over legislative policy, the Attorney General told the Bench:

“If parliament does not, as the court desired to happen, focus attention on that, somebody will come back to the court and say parliament did not apply its mind, disregarded your judgment. And therefore, they were bound to act entirely in terms of the judgment of the court.”

The Attorney General contended that Anoop Baranwal was not a conventional declaration of law, but an interim arrangement evolved by the Court in the absence of legislation. He submitted:

“Anoop Baranwal is not a case where legislation was sought to be put to the test. There is no declaration of law in that strictest sense…It’s a case where people came to the court saying, for 75 years Parliament has not enacted a law… and therefore there is a vacuum.”

Warning against turning the present challenge into what he described as “Anoop Baranwal number two,” the Attorney General said the Court was effectively being invited to supervise whether Parliament had sufficiently complied with judicially suggested norms:

“Today your Lordships are being asked to act as an executing court of what Anoop Baranwal has said. If the court thought there would be Anoop Baranwal number two, where this court will sit in execution of a previous order, we are entering into a very different domain where the lines between what court can do and would avoid doing is now getting into it.”

The Bench, however, clarified that the challenge was not confined to whether Parliament had violated Anoop Baranwal. The Court observed that the law was being independently tested on the touchstone of Articles 14 and 324, especially in light of the constitutional requirement of free and fair elections and the need for an independent Election Commission.

Responding to concerns over institutional independence, the Attorney General argued that the petitioners’ challenge rested largely on hypothetical assumptions regarding the future conduct of Election Commissioners appointed under the law. He submitted:

“The actual functioning lack of independence is different from saying if you follow this law, and perhaps you will have election commissioners who will definitely lack independence. It’s a huge hypothetical argument before the court.”

Directions Issued Under Article 142 are Intended Solely to Fill a Legislative Vacuum

Drawing a distinction between the Supreme Court’s power to declare law under Article 141 and its extraordinary equitable powers under Article 142, he argued that directions issued under Article 142 to fill a legislative vacuum do not amount to binding precedent and cannot later be used to invalidate a law enacted by Parliament.

“The extraordinary equitable jurisdiction under Article 142 is distinct from the declaratory precedential jurisdiction in Article 141. Directions issued on Article 142 are intended solely to fill a legislative vacuum and operate merely as a temporary stopgap arrangement until the competent legislature enacts a law governing the field. Such interim directions cannot thereafter furnish the touchstone for invalidating or testing subsequently enacted legislation.”

Continuing his submissions before the Supreme Court, Attorney General R. Venkataramani argued that judicial directions issued to fill constitutional or legislative gaps could not permanently bind Parliament once legislation had been enacted. Drawing an analogy with the Supreme Court’s issuing of the Vishaka guidelines on sexual harassment at workplaces, he said that even after Parliament enacted the 2013 law, courts continued to revisit issues left unaddressed by the legislation.

Using the illustration to explain the limited role of judicial gap-filling, he reiterated his concern that the present challenge effectively sought to convert the Supreme Court into “an executing court” for Anoop Baranwal.

We Know Our Laxman Rekha: Supreme Court

On institutional design, democratic legitimacy and the limits of judicial review, the Attorney General repeatedly argued that the Court should avoid entering the “legislative arena” by second-guessing Parliament’s policy choices regarding the structure of appointment mechanisms.

“If Parliament, after considering all these debates, chose one among many possible models, the Court cannot become a second chamber of Parliament,” he submitted.

The Attorney General also cautioned against imputing institutional bad faith either to Parliament or the judiciary: “Parliament may attribute anything to the judiciary.” The Bench immediately responded: “But we know our Lakshman Rekha. We will never do that. They should also not do that.”

The hearing then widened into a larger constitutional discussion on democratic endurance, constitutional stability and institutional checks. Referring to the 42nd Constitutional Amendment enacted during the Emergency, one of the judges remarked that Parliament had extended its own term and passed a far-reaching amendment “when all the persons were behind bars.”

The Attorney General acknowledged the historical concern but responded by stressing the resilience of Indian constitutional democracy:

“The endurance of a Constitution does not come only from within institutions; it also comes from the people’s faith in the Constitution. When we have all these debates, ultimately they are about the endurance of the Constitution.”

Potential For Abuse Can’t Render a Law Unconstitutional

The Attorney General also emphasised that the constitutional architecture already contained safeguards protecting Election Commissioners, including tenure protections and service conditions. According to him, the only remaining objection raised by petitioners was what they described as the “troublesome aspect” of executive involvement in appointments.

Referring to the Union’s submissions in Anoop Baranwal, he argued there had historically been no demonstrated institutional breakdown warranting judicial intervention.

“There exists no identifiable wrong, a trigger point, to warrant any judicial interference,” he submitted, adding that the “potential for abuse” or “potential for mistakes” could not by themselves render a law unconstitutional.

Independence Cannot Be Reduced to an Abstract Formula

The Bench repeatedly emphasised that independence of the Election Commission was central to constitutional democracy and drew attention to passages in Anoop Baranwal describing independence as a “sterling and indispensable attribute.” The Court observed that democracy itself depended on free and fair elections and questioned how the constitutional requirement of institutional independence could be safeguarded if the executive retained a dominant role in appointments.

Responding, Attorney General R. Venkataramani argued that the concept of “independence” could not be treated as an abstract or absolute constitutional formula detached from institutional functioning. Referring to observations in Anoop Baranwal, he submitted: “True independence is not to be confused with sheer unilateralism.” He argued that the Election Commission, like every constitutional authority, remained bound by the constitutional framework and statutory limitations and could not act outside legal constraints while claiming institutional independence.

The Attorney General also cautioned against assuming that executive participation in appointments automatically destroyed independence, arguing that such a proposition could not be accepted as a constitutional truism without evidence of actual institutional failure.