The story so far: On Thursday, the Supreme Court ruled that the appointment of the Chief Election Commissioner (CEC) and Election Commissioners by the President will be based on the advice of a three-member high-level committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India (CJI).
A five-judge Constitution Bench headed by Justice KM Joseph delivered the landmark order after hearing a batch of pleas seeking an independent system to appoint Election Commissioners outside the government’s exclusive power, to ensure impartial operation of the Election Commission of India (ECI). “This norm will continue to hold good till a law is made by parliament,” the SC said, noting that the Commission must act within the constitutional framework to ensure its independence and neutrality.
What were the petitions about?
A set of petitions calling for a neutral mechanism to appoint Election Commission members revived the debate on the need for a collegium-like panel.
In 2015, Anoop Baranwal filed a public interest litigation (PIL), contending that successive governments failed in the constitutional obligation to set up a “fair, just and transparent process” for the selection of Election Commissioners. The petitioner claimed that appointments were made by the President solely on the advice of the Executive. This “gives ample room for the ruling party to choose someone whose loyalty is ensured and renders the selection process vulnerable to manipulations and partisanship,” the petitioner contended.
During the hearing, the Court asked the government whether it should intervene, to achieve the constitutional objective of Article 324 (2), which deals with the Election Commission and its members. The Centre opposed the petition, saying that there was no case so far of abuse of power by the CEC.
The Centre argued that the appointment of Election Commissioners to the top poll body is “consciously and deliberately” a part of the executive function of the State. Dissatisfied with this, the Bench of the then Chief Justice of India Ranjan Gogoi and Justice S.K. Kaul referred the matter to a five-judge Constitution Bench for a “close look” in October 2018. The SC clubbed similar petitions and the Constitution Bench began hearing the matter in November 2022.
During the hearing, the Court noted that an Election Commissioner could be competent and honest but could have a definite political leaning which may show in office. The Supreme Court observed that the country needed Election Commissioners who would not shirk from even taking on the Prime Minister if required, and not just “weak-kneed” yes-men.
Former IAS officer Arun Goel’s appointment also came under scrutiny as the SC questioned the “haste” and “tearing hurry” with which the Centre appointed him as an Election Commissioner. The top court sought records regarding the appointment and after examining them, said that said Mr. Goel’s appointment was done with “lightning speed”.
“A CEC is a person to be appointed in his own right. You have made it into a promotion source. You are supposed to appoint a person directly as CEC. You have made ECs a feeder category. The Founding Fathers contemplated a CEC who will hold office for six years independently… not as a promotion,” Justice Joseph noted.
What is the current process of selection of Election Commissioners?
The appointment of Election Commissioners falls under the purview of Article 324(2) of the Constitution.
The provision states, “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”
As per the ‘subject to’ clause, the number and tenure of the ECs are subject to the provisions of “any law made on that behalf by Parliament”. No such law has, however, been made for appointments yet.
Interestingly, during a debate in the Constituent Assembly about the draft article, Dr B.R. Ambedkar said, “… there is no use making the tenure of the Election Commissioner a fixed and secure tenure if there is no provision in the Constitution to prevent either a fool or a knave or a person who is likely to be under the thumb of the executive.”
Currently, the President appoints the CEC and two ECs on the advice of the Prime Minister and council of ministers. Under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, an EC can have a tenure of six years or up to the age of 65, whichever is earlier. Typically, the senior-most election commissioner is appointed as the CEC.
Once appointed, the Chief Election Commissioner can be removed from office only through Parliamentary impeachment. However, no such protection of tenure is available to Election Commissioners, who can be removed by the government on the recommendation of the CEC.
What revision has the top court ordered?
As per the Supreme Court’s directions,a panel that includes the Prime Minister, the Leader of the Opposition in Lok Sabha and the Chief Justice of India will now advise the President regarding the appointment of Election Commissioners — similar to the appointment of the Director of the Central Bureau of Investigation. If the position of the Leader of the Opposition is vacant, the leader of the single largest opposition party will be on the committee. This system of appointment will be in force till the Parliament comes up with a specific law, the SC said on Thursday.
The Constitution Bench appealed to the Parliament and the central government to constitute an independent secretariat for dealing with the expenditure of the Commission to insulate it from any financial obligation to the government.
“One of the ways the Executive can bring the Election Commission to its knees is by starving it off requisite finances much needed for its independent functioning… A vulnerable Commission, faced with the prospects of lack of funds, may kneel to the pressure of the Executive, and that would result in an insidious conquest of an otherwise defiant and independent Election Commission,” said Justice K.M. Joseph, who authored the unanimous judgment.
In a concurring opinion, Justice Ajay Rastogi said procedural safeguards in place for the removal of CEC should be extended to the Election Commissioners.
