Manas Dasgupta
NEW DELHI, Mar 2: In a landmark judgement, a five-member constitution bench of the Supreme Court on Thursday outlined the formation of the Election Commission of India to make the functioning of the poll body more transparent and impartial independent of the governmental control for funding.
Instead of the current system of the president acting only at the advice of the prime minister for appointing the election commissioners and the chief election commission, the court ordered that the Election Commissioners would be appointed on the advice of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India, insulating the top election body from political interference. If there is no Leader of Opposition in the Lok Sabha, the single largest opposition party will be on the panel, the Supreme Court said.
While delivering the far-reaching verdict, the Supreme Court called for the Election Commission to have an independent secretariat, rule-making powers, an independent budget, and protection from impeachment. The court said the Election Commission should draw funds directly from the Consolidated Fund of India, instead of having to go to the Prime Minister’s Officer and the Law Ministry for funds and approvals.
The court said “fierce independence, neutrality and honesty” envisaged in the institution of the Election Commission of India (ECI) requires an end to government monopoly and “exclusive control” over appointments to the highest poll body.
But it also gave a lee-way to the party in power giving it the option to form a law to this effect. The court said the order would hold good “until a law is made by parliament.” The court said the high-powered committee would continue to advise the President on the appointment “until Parliament enacts a law on the appointment process of Election Commissioners. Chief Election Commissioners and Election Commissioners.” They were so far been appointed by the President on the advice of the Prime Minister.
The judgment came on petitions filed through advocates Prashant Bhushan, Kaleeswaram Raj, Ashwini Upadhyay and senior advocate Gopal Sankaranarayanan for an accountable and transparent appointment process. The judgment has now brought the appointment process of Chief Election Commissioners and Election Commissioners on par with that of the CBI Director.
Justice K.M. Joseph, who authored the unanimous judgment for the five-member Bench, said what the Election Commission of India requires are “honest, independent” commissioners who could distinguish right from wrong, those who can “ordinarily and unrelentingly take on the high and mighty and persevere in the righteous path.” “Elections should undoubtedly be fair and the buck stops with the Election Commission of India to ensure its purity is maintained,” said a five-judge Constitution bench led by Justice KM Joseph.
“In democracy, the purity of elections must be maintained or else it would lead to disastrous consequences,” said the unanimous verdict that comes before a string of state polls and the 2024 national election. Democracy is fragile and will collapse if lip service is paid to rule of law, the judges said.
In a concurring opinion, Justice Ajay Rastogi added that the procedural safeguards in place for effecting the removal of a Chief Election Commissioner (CEC) should be extended to the Election Commissioners under the first proviso to Article 324(5) of the Constitution. A CEC, like Supreme Court judges, can be removed from office only by way of a parliamentary process. However, no such protection of tenure is available to the Election Commissioners.
In his judgment, Justice Joseph said the fate of political parties and democracy rests in the hands of the Election Commission and “the buck stops at the table of the Chief Election Commissioner and the Election Commissioners”. In a substantive democracy, the power to vote is “more potent than the most powerful gun”. People depend on an honest Election Commissioner, blessed with extraordinary powers, to guard the purity of the electoral process.
“The people of the country look up to the Election Commissioners… A person who is weak-kneed before the powers that be cannot be appointed as an Election Commissioner. A person who is in a state of obligation or feels indebted to one who appointed him, fails the nation. Such a person cannot have a place in the conduct of elections which forms the foundation of democracy… An Election Commissioner should be one who holds the scale evenly in the stormiest of times by not being servile to the powerful and by coming to the rescue of the weak and the wronged. This would qualify as true independence,” Justice Joseph wrote.
The court noted that 75 years have passed since Independence, yet successive political dispensations which have come to power so far have not lifted a finger to frame a law guiding the appointments to the Election Commission.
“Political parties betray a special interest in not forthcoming with a law. The reasons are not far to seek… There is a crucial link between the independence of the Election Commission and the pursuit of power by parties, their consolidation and perpetuation… An insatiable quest to continue in the saddle requires a pliable Election Commission who functions as an unfair and biased overseer of the electoral process which lies at the very heart of democracy… An Election Commissioner who obliges the powers that be, perhaps even offers an assured gateway to the acquisition of power,” Justice Joseph observed.
“The Election Commission must act within the constitutional framework and law and cannot act in an unfair manner,” the court said, adding that an Election Commission that didn’t have a free and fair role in the process “guarantees breakdown of rule of law, which is the bedrock of the democracy”.
“There cannot be any doubt that the Election Commission of India is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the executive.” The Supreme Court had in earlier hearings stressed on a “fair and transparent mechanism” so that the “best man” is appointed as the Chief Election Commissioner of the country.
“It is the need of the hour and advisable to extend the protection available to the CEC under the first proviso to Article 324(5) to other Election Commissioners as well until a law is framed by the Parliament… It is desirable that the grounds of removal of the Election Commissioners shall be the same as those of the CEC and Supreme Court judges,” Justice Rastogi said.
CECs and apex court judges can be removed only by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same session. The grounds of removal are limited to “proved misbehaviour or incapacity”.
The judge noted that the conditions of service of Election Commissioners, after appointment, should not be “varied to their disadvantage”. These directions hold that the tenures of the Election Commissioners should not be disturbed in any way. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 requires that the CEC and Election Commissioners must hold the post for a period of six years.
In the current system, the President appoints the Chief Election Commissioner and two commissioners for six years on the recommendation of the Prime Minister, and they are usually from amongst the sitting or retired bureaucrats. Petitions had sought a collegium-like system for appointing election commissioners, arguing that the existing process was driven by “whims and fancies of the executive.”
The petitions said unlike the appointments of the CBI director or corruption watchdog Lokpal, where the leader of the Opposition and judiciary have a say, the Centre unilaterally appointed members of the Election Commission.
The Supreme Court had questioned the Centre on the “tearing hurry” with which it appointed former IAS officer Arun Goel as an Election Commissioner at “lightning speed”, within 24 hours. The judges had asked to see the files, saying they wanted to know if there was any “hanky-panky.”
Arun Goel, a 1985-batch IAS officer, took voluntary retirement on November 18 and was appointed Election Commissioner a day later. He took charge on November 21. He is in line to be the next Chief Election Commissioner in 2025, when the current chief’s term ends.
The Supreme Court, on examining the file, asked how the Ministry of Law and Justice shortlisted four names for Election Commissioner. None of them would get even six years as Election Commissioner, it said.
The opposition Congress called for the resignation of all three Election Commissioners. “They can be appointed and eligible if the selection committee decides. There will be an attempt by the government to amend the Supreme Court decision, try to weaken the order,” said Congress leader Abhishek Manu Singhvi, calling the Supreme Court order “historic.” Other opposition parties also welcomed the ruling. “Huge. So Extremely Compromised (EC) can again strive to become Extremely Competent,” Trinamool Congress leader Derek O’Brien posted.
