In historic verdict, apex court rules panel will appoint CEC

Election commissioners and the Chief Election Commissioner will henceforth be chosen by a panel comprising the Prime Minister, the Leader of the Opposition (LoP), and the Chief Justice of India (CJI), till Parliament passes a law on the appointments, the Supreme Court ruled on Thursday

Election commissioners and the Chief Election Commissioner will henceforth be chosen by a panel comprising the Prime Minister, the Leader of the Opposition (LoP), and the Chief Justice of India (CJI), till Parliament passes a law on the appointments, the Supreme Court ruled on Thursday.

HT Image

The ruling, which makes the process for selection of ECs and CEC similar to that of the head of the Central Bureau of Investigation, comes against the backdrop of frequent complaints by opposition parties, alleging bias on the part of the Election Commission of India (ECI).

Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner, the Supreme Court asserted, as it divested the central government of the absolute power to appoint the CEC and ECs.

In the absence of an LoP, the leader of the single largest Opposition party in Parliament will be included in the collegium to appoint the CEC and ECs, clarified the five-judge bench headed by justice KM Joseph while shooting down the Centre’s argument that the court must not intervene in the selection mechanism.

“The ballot is more potent than the most powerful gun... An unrelenting abuse of the electoral process over a period of time is the surest way to the grave of the democracy... The election commissioners including the CEC, blessed with nearly infinite powers and who are to abide by the fundamental rights must be chosen not by the Executive exclusively and particularly without any objective yardstick,” declared the bench, which also included justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar.

Opposition parties welcomed the verdict, with most stating that it would help clarify the selection process and “safeguard democracy”, although Congress president Mallikarjun Kharge was clear that it was only “better than nothing”.

“It should not happen like in the CBI where, in spite of dissent, they select their own candidates. But it is better than nothing,” said Kharge, referring to the process of selection of the head of the federal investigation agency, which, like the ECI, has come in for fire from opposition parties for alleged bias.

In its 378-page judgment, the court also held that right to vote is not merely a statutory or legal right, but is a constitutional right, which like every other right, is subject to valid restrictions imposed under various laws. The bench, by 4-1 majority, however, stopped short of delivering a final ruling on this aspect since another five-judge bench in 2006 held that there is no constitutional right to vote. Justice Rastogi, in his separate judgment, declared that the right to vote in direct elections is a fundamental right.

Similarly, the bench by 4-1 also held that the ECs cannot be brought on par with the CEC in being granted the protection from removal. While the CEC can be removed only through an impeachment process — like a judge of a constitutional court — ECs can be removed by the President following a recommendation of the CEC. While the majority said that it is for Parliament to frame a law in this regard, justice Rastogi said that it is the need of the hour and advisable to extend the same protection to ECs until any law is framed.

The five judges, however, were unanimous in holding that it is for Parliament and the Union government to put in place a permanent secretariat for the Election Commission of India (ECI) and charging its expenditure to the Consolidated Fund of India, and that no judicial directive can be passed at the instance of the petitioners.

In its judgment, the court stressed that a person, who is weak-kneed before the powers that be, cannot be appointed as an EC. “A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy... It is important that the appointment must not be overshadowed by even a perception, that a ‘yes man’ will decide the fate of democracy and all that it promises,” it said.

The bench underlined that the Constitution and the Founding Fathers clearly contemplated a law to be made by Parliament and did not intend the Executive exclusively calling the shots in the matter of appointments to the election commission.

“Seven decades have passed by. Political dispensations of varying hues, which have held the reigns of power, have not unnaturally introduced a law... Our minds stand fortified that there is an imperative need for the Court to step in,” said the court, delivering a historic decision on a clutch of petitions that had sought directive to strip the Executive’s discretion with an independent mechanism to appoint the CEC and ECs.

Currently, ECI is a three-member body, with a CEC and two ECs. Under Article 324(2) of the Constitution, the President is empowered to appoint the CEC and ECs. This provision further stipulates that the President, who acts on the aid and advice of the Prime Minister and the council of ministers, will make the appointments “subject to the provisions of any law made on that behalf by Parliament”.

However, with no such law having been framed to date, CEC and ECs are appointed by the Prime Minister and the council of ministers under the seal of the President. The rules for such appointments are also silent on the qualification of a candidate.

On Thursday, the top court noted that the making of law for such appointment was a “constitutional imperative” and an “unavoidable necessity” but since the Parliament has failed to do so, there is certainly a vacuum that needs to be filled through the intervention of the highest court of the land.

“We are concerned with and the devastating effect of continuing to leave appointments in sole hands of the Executive on fundamental values, as also the fundamental rights, we are of the considered view that the time is ripe for the Court to lay down norms,” it said.

The court added that the refusal of Parliament, despite the constitutional provision and availability of a large number of reports recommending a different appointment process, “reassures us that even acting within the bounds of the authority available to the Judicial branch, we must lay down norms, which, undoubtedly, must bear life only till Parliament steps in”.

The bench lamented that political parties would appear to betray a special interest in not being forthcoming with the law. “The reasons are not far to seek. There is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation... As long as the party that is voted into power is concerned, there is, not unnaturally a near insatiable quest to continue in the saddle,” it noted.

However, the court emphasised, “a pliable election commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power.”

The bench said that criminalisation of politics, a huge surge in the influence of money power, the role of certain sections of the media which, it said, appear to have forgotten their invaluable role and have turned unashamedly partisan, call for the unavoidable and unpostponable filling up of the vacuum.

Describing the role of the election commission in ascertaining the purity of the electoral process, the bench said that in the wide spectrum of powers, if the commission exercises them unfairly or illegally as much as it refuses to exercise power when such exercise becomes a duty, it has a telling and chilling effect on the fortunes of the political parties.

“Inequality in the matter of treatment of political parties who are otherwise similarly circumstanced unquestionably breaches the mandate of Article 14 (equality). Therefore, any action or omission by the election commission in holding the poll which treats political parties with an uneven hand, and what is more, in an unfair or arbitrary manner would be anathema to the mandate of Article 14, and therefore, cause its breach,” it added.

The court on November 24 reserved its verdict after wrapping up the arguments in a batch of four public interest litigations (PILs) that have pressed for the issuance of directives for setting up a neutral and independent selection panel for recommending names to the President for appointments as CEC and ECs.

While hearing the matter on different dates in November, the five-judge bench grilled the Union government over the lack of regulations to guide the appointment of CEC and ECs.

At one point, it questioned the government if it was not defeating the wishes of the framers of the Constitution by not framing a law, adding the apex court could examine the necessity of having a better system.

During the proceedings, the court also lamented that successive governments have “completely destroyed” the independence of ECI by ensuring no CEC gets the full six-year term since 1996, adding the absence of a law for the appointment of ECs has resulted in an “alarming trend”.

The government retorted, telling the court that the participation of the CJI in picking ECs cannot be the only guarantee of fairness in the selection process.

As the arguments drew to a close in the last week of November, the court asked the Centre to produce the file related to the appointment of Arun Goel as an EC on November 18, even as the bench was seized of the matter. At that time, the top court had also clarified that it will not scrutinise the correctness of Goel’s appointment but wished to see how the government appoints CEC and ECs.

In its judgment on Thursday, the bench noted that not only he was appointed in a hastily fashion while the matter was pending before the court, he would have a tenure of a little over two years whereas the law stipulates a six-year tenure for ensuring the officer’s independence and stability of term.

“We must make it clear that the observations are not meant to be an individualised assessment of the appointee, who we do note, has excellent academic qualifications. But as we have noted academic excellence which members of the civil service may possess cannot be a substitute for values such as independence and freedom from bias from political affiliation,” it said.

West Bengal chief minister Mamata Banerjee called the “landmark order” a “democratic victory”.

“We welcome the decision of the Constitution Bench on the appointment of Election Commissioners and Chief Election Commissioner. Will of the people prevails over the ill-fated attempts of the oppressive forces,” she tweeted on Thursday.

Former chief election commissioner SY Quraishi also welcomed the judgment.

“This reform has been pending for over two decades, with even the law commission of India recommending it. It is very important for the perception of neutrality and non-partisanship of the autonomous body that the Commission is,” Quraishi said.