In a unanimous verdict, a five-judge Constitution Bench led by Justice KM Joseph – which had reserved its verdict on November 24 last year—ruled that the new system created by it shall remain in force until a law in this regard was made by Parliament
Staff Reporter
In a historic ruling, the Supreme Court today quashed the present system of appointment of Chief Election Commissioner and the election commissioners and ruled that a panel of Prime Minister, Chief Justice of India and the leader of opposition will make these appointments.
A five-judge Constitution bench presided by Justice K M Joseph made the ruling which is set to limit the government’s authority to make such high-level appointments like that of the CEC and ECs, and this will continue to hold good till a law is made by Parliament, as per the SC bench.
“Purity of the election process must be maintained to preserve democracy. Otherwise, it would lead to disastrous consequences,” said justice Joseph while reading out the operative part of his judgment.
Election Commissioners at present are appointed at the behest of the government by the order of the President. Chief Election commissioner (CEC), by convention, are the senior most election commissioners.
The Supreme Court on Thursday revamped the selection mechanism to appoint the Chief Election Commissioner (CEC) and Election Commissioners (ECs), ruling that a panel comprising the Prime Minister, the Leader of Opposition (LoP), and the Chief Justice of India (CJI) shall appoint them.
“The Election Commission has to be independent, it cannot claim to be independent then act in an unfair manner. A person in a state of obligation to the State cannot have an independent frame of mind. An independent person will not be servile to those in power,” said the Bench – which also included Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice CT Ravikumar.
The verdict came on petitions seeking a Collegium-like ‘independent’ mechanism to appoint the CEC and ECs. Such a Collegium could consist of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha to select the CEC and ECs, the petitioners had suggested.
Attorney General R Venkataramani had defended the current system of appointment where the Government picked up the poll panel head and its members.
The top court asked the government to consider making necessary changes with regard to funding of the Election Commission from the Consolidated Fund of India and the need to have a separate Secretariat.
Maintaining that the Election Commission has to remain aloof from all forms of subjugation by the Executive, the Bench said, “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.”
Several political parties came into power, however, none of them framed a law on the appointment of Election Commission, It said. Terming it a “lacuna” in law, the Bench said making a law under 324 was an unavoidable necessity.
Justice Rastogi delivered a separate concurring judgment to say that the grounds for removal of Election Commissioners should be the same as those of the Chief Election Commissioner.
The top court said Democracy can succeed if only all stakeholders work on it to maintain the purity of the electoral process to ensure it reflects the will of the people. “A large section of the media has abdicated its role and become partisan,” it lamented.
During the hearing, the top court had questioned the “tearing hurry” and the “lightning speed” with which the Government appointed Punjab cadre IAS officer Arun Goel as an Election Commissioner even as the Attorney General defended the mechanism followed in appointing the CEC and ECs.
Describing it as “a very difficult process”, Venkataramani had said the short-listing was done on the basis of batch, seniority, date of birth, retirement and the tenure the person was likely to have in the EC so that the person appointed got at least six years as Election Commissioner.
Under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, an EC can have six-year tenure or up to the age of 65, whichever is earlier.
The Bench had sought to know why the Government did not appoint people who would have six-year tenure. “You are required to pick up people who should get six years as EC. Now, you haven’t picked up such people who will get an ordinary period of six years as EC either. This is a violation of Section 6 of the Act,” it had said.