Supreme Court Directs Appointment Of Election Commissioners On Advise Of Committee Comprising Prime Minister, Leader Of Opposition And CJI

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...

Supreme Court Directs Appointment Of Election Commissioners On Advise Of Committee Comprising Prime Minister, Leader Of Opposition And CJI

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