A Constitution Bench of the Supreme Court has ordered that Election Commissioners will be appointed by the President of India on the advice of a Committee consisting of the Prime Minister, and leader of Opposition in the Lok Sabha (or leader of largest opposition party), and the Chief Justice of India.

This practice will be enforced until a law in this regard is made by the Parliament, Justice KM Joseph reading out the judgment said.

A Constitution Bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar was deciding a batch of petitions recommending reform in the process of appointment of members of the Election Commission of India. “Any process that seeks to improve the election process before this Court must be considered,” it said.

The bench noted that several political parties came into power, however, none of them framed a law/ process for appointment of Election Commission. It said that this is a “lacuna” in law and that making of law under Article 324 of the Constitution is an unavoidable necessity.

The bench emphasised that the Election Commission is duty bound to act in a fair and legal manner and to abide by the provisions of the Constitution and the directions of the Court. “Democracy is inexplicably intertwined with power to the people…Democracy facilitates the peaceful revolution in the hands of a common man if held in a free and fair manner.

Court said the Election Commission has to remain “aloof” from all forms of subjugation by the executive. “One of the ways it can interfere is cutting of financial support. A vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning.

It said Democracy can succeed only if all stakeholders work on it to maintain the purity of the election process, so as to reflect the will of people. However, it expressed regret at the “unrelenting abuse” of the electoral process over a period of time. It also commented on the impartiality of the media in the present times. “A large section of the media has abdicated its role and become partisan,” it said.

The bench said that power often becomes goal of political parties to an end. However, the conduct of the government has to be fair and in a democracy, the end cannot justify the means. Thus, it said that EC has to be independent.

The means to gain power in a democracy must remain pure and abide by the Constitution and the laws. EC cannot claim to be independent then act in an unfair. A person in state of obligation to the state cannot have an independent frame of mind. An independent person will not be servile to those in power.

In his concurring opinion, Justice Rastogi added that grounds of removal of Election Commissioners should be the same as that of the Chief Election Commissioner.

One of the suggestions made before the Court was to have a “collegium” comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition to select Election Commissioners. The bench had observed that its concern was to ensure that the persons appointed are “above politics”.

During the hearing, the bench had questioned the Union Government for clearing the appointment of Arun Goel as one of the Election Commissioners at a “lightning speed” when the hearing was underway. The bench asked the Attorney General for India to produce the files related to the appointment of Arun Goel.

The matter was referred to the Constitutional Bench after a Division Bench of the Apex Court was of the view that ‘a close look and interpretation of the provision of Article 324 of the Constitution of India’, which states superintendence, direction and control of elections to be vested in the Election Commission, may be required.

Arguing before the Constitution Bench, Advocate Prashant Bhushan appearing for the petitioner in the lead matter contended that there is no law to regulate the appointment of Election Commissioners. He submitted that financial independence is not enough to ensure overall independence of the institution. It was pointed out by Mr. Bhushan that the Law Commission had recommended to have a selection committee comprising the Prime Minister, Leader of Opposition and the Chief Justice of India. He suggested that since the Prime Minister and the Leader of Opposition are connected to political parties, the Court can consider constituting a neutral body. One of the viable options, according to Mr. Bhushan is the Supreme Court Collegium. Alternatively, he suggested that a five-member committee can be constituted for appointment of ECI members. Mr Bhushan submitted that the appointing body ought to practice transparency.

Senior Advocate, Mr. Gopal Sankaranarayanan representing another petitioner emphasised that there is a vacuum under Article 324(2) of the Constitution as there is nothing to suggest the procedure to make appointments to the ECI. In this regard, he proposed a three-member committee consisting of the CJI, Prime Minister and the Leader of Opposition. He further submitted that till date, the Central Government has not appointed anyone as the Election Commission for the full tenure of 6 years and the same keeps the EC on a leash and affects the independence of the institution. He insisted that a mechanism be evolved to appoint Election Commissioner and Chief Election Commissioner through a transparent process which is devoid of arbitrariness. Advocate Kaleeswaram Raj appearing for petition in one of the pleas submitted that there is a chronic case in India that the ECI has been favouring the ruling party.

Appearing on behalf of the Union of India, Attorney General for India, R. Venkatramani made submissions on the powers of the Constitutional Courts in India and across the world and their inherent limitations based on the Montesquian principle of Separation of Powers which is also a part of the Indian Constitutional Scheme. He argued that an original provision of the Constitution cannot be struck down by a Court, it can only enhance the scope of the provision. It was pointed out that there are several provisions in the Constitution which empowers the Parliament to enact statute, however the court cannot decide whether to enact a law on behalf of the Parliament. The Attorney General also argued that the reports referred to by the petitioners are vague and none of them go beyond asking for reforms.

Additional Solicitor General, Balbir Singh argued that the case before the Bench is different from the Vineet Narain and Vishakha cases and there is no trigger point and a vacuum to be filled up by the guidelines of the Apex Court. He submitted that in the present case no evidence of partiality or unconstitutionality has been adduced.

Referring to the doctrine of separation of power, the Solicitor General of India, Tushar Mehta averred that the power to appoint has been conferred upon the executive and the inclusion of the CJI in the appointment process would mean that the Constitution has to be rewritten. He argued that the same would be in the teeth of the concept of democracy.

During the course of the hearing at the request of Mr. Bhushan, who pointed out that the present Election Commissioner was a sitting Secretary in the Government and was given a Voluntary from service and appointed as EC within two days, the Bench had sought files related to the recent appointment of Arun Goel, former bureaucrat, as the Election Commissioner. Justice Joseph pointed out that even among the 4 names that were shortlisted, the Government selected names of those who were to retire before the 6 year tenure. He noted that the executive is required to pick names of those who could serve the full tenure, otherwise it would be a violation of Section 6 of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991.


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