President to appoint CEC, ECs on advise of committee comprising PM, LoP, CJI: Supreme Court

Published - March 02, 2023 08:44 pm IST

A Constitution Bench of the Supreme Court on March 2 directed in a landmark judgment that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) will be appointed by the President on the advice tendered by a committee of Prime Minister, Leader of Opposition (LoP) in the Lok Sabha or the leader of the single largest party in opposition and the Chief Justice of India (CJI).

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.

The court said the high-powered committee would continue to advise the President on the appointment until the Parliament enacts a law on the appointment process of Election Commissioners. Chief Election Commissioners and Election Commissioners have so far been appointed by the President on the advise 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”.

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 court further made a “fervent appeal” to the Parliament and the Union Government to set up a permanent secretariat which draws its expenses directly from the Consolidated Fund of India and not 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,” Justice Joseph said.

In his opinion, Justice Rastogi noted that the Election Commission has been a multi-member body since 1993. The CEC and the Election Commissioners have “equal participation in transacting the business of the Election Commission” which includes superintendence, direction and control of electoral rolls and conduct of elections to the Parliament, State legislatures, offices of the President and the Vice-President of India.

“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.

Lately, the Election Commission has seen appointments who have not been able to serve the full six-year period.

SC forms five-member expert committee to look into Hindenburg report on Adani Group, to be overseen by retired SC judge

The Supreme Court on Thursday formed a five-member expert committee headed by former apex court judge, Justice Abhay Manohar Sapre, to investigate the causal factors and existence, if any, of regulatory failure which led to investors losing crores due to the volatility in the securities market following Hindenburg Research’s report accusing the Adani Group of manipulation of share prices and account fraud.

The committee includes former chairman of the State Bank of India O.P. Bhatt, retired Bombay High Court judge Justice J.P. Devadhar, former chief of the New Development Bank of BRIC countries K.V. Kamath, co-founder of Infosys Nandan Nilekani and securities expert and lawyer Somasekhar Sundaresan.

The Supreme Court Collegium’s recommendation of Sundaresan as a Bombay High Court judge has been pending with the government for months now. The government had objected to his name, calling him a “highly opinionated person”, but the Collegium had backed his right to free speech and reiterated its recommendation only recently.

“In order to protect Indian investors from the volatility of the kind witnesses in the recent past, we are of the view that it is appropriate to constitute an expert committee for assessment of the extant regulatory framework and for making recommendations to strengthen it,” a three-judge Bench led by Chief Justice of India D.Y. Chandrachud observed in its order.

The remit of the committee are four and all-encompassing. They include, to provide an overall assessment of the situation, including the relevant causal factors which led to the volatility in the securities market in the recent past; to suggest measures to strengthen Indian investor awareness; investigate whether there has been a regulatory failure in dealing with the alleged contravention of laws protecting the securities market in relation to the Adani Group of companies; suggest measures to strengthen the statutory and regulatory framework and secure compliance with the existing framework for the protection of investors.

The expert committee was requested to submit its report to the Supreme Court in a sealed cover expeditiously within two months.

Market regulator Securities and Exchange Board of India (SEBI), agencies connected with financial regulations, fiscal agencies, law enforcement agencies should cooperate with the expert committee.

SEBI has to provide all “material and requisite information” to the committee. The expenses of the committee would be borne by the Union government. The court recorded in its order that the SEBI is already investigating into the allegations in the Hindenburg report against the Adani Group as well enquiring into “market activity immediately preceding and post the publication of the Hindenburg report to identify violations”.

The SEBI probe, the court noted, included violations of the market regulator’s regulations, including and not limited to various laws like SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003; SEBI (Prohibition of Insider Trading) Regulations, 2015; SEBI (Foreign Portfolio Investors) Regulations, 2019, Offshore Derivative Instruments (ODI) norms, short selling norms, if any.

However, the court highlighted certain blanks in the SEBI’s probe, details of which the court said was too early to out. For example, the court said SEBI has not “expressly referred” to any investigation into the alleged violation of the Securities Contract (Regulation) Rules of 1957 against the Adani Group.

Rule 19A of the 1957 Rules provides for the maintenance of the minimum public shareholding by companies and its attainment within a specified period. Listed companies, other than public sector units, should maintain public shareholding of at least 25%. “Similarly there may be various other allegations that SEBI must include in its investigation,” the court said.

Northeast assembly elections: BJP coalition retains Tripura, Nagaland, to back NPP in Meghalaya

As the BJP and its alliance partner Nationalist Democratic Progressive Party (NDPP) crossed the majority mark by winning 37 seats in Nagaland, Prime Minister Narendra Modi on March 2 thanked the people of the state. PM Modi said that the double-engine government will keep working for the state’s progress. In Tripura, the BJP won 32 seats along with coalition partner Indigenous People’s Front of Tripura, which won one seat, in the 60-member Tripura assembly, securing its return to power in the state for the second time in a row. The BJP will support Conrad Sangma’s National People’s Party in Meghalaya, Assam CM Himanta Biswa Sarma said.

Left Front supported Congress candidate Bayron Biswas sprang a surprise on March 2 by defeating Trinamool Congress nominee Debasish Banerjee in the by-election for Sagardighi Assembly constituency in West Bengal’s Murshidabad district by a margin of 22,986 votes. The bypoll results are significant not only because the Congress party will have a representative in the State Assembly but also because Trinamool Congress lost in a constituency where it had registered three consecutive victories since 2011.

Don’t threaten, leave my court, CJI Chandrachud to SCBA president Vikas Singh

A heated exchange of words was witnessed in the Supreme Court on March 2, 2023 between Chief Justice of India (CJI) D.Y. Chandrachud and Supreme Court Bar Association (SCBA) president Vikas Singh in a case related to the allotment of land for lawyers’ chambers, with the CJI directing the senior lawyer not to raise his voice and leave the court.

During the mentioning of cases, the SCBA president told a Bench of the CJI and Justices P.S. Narasimha and J.B. Pardiwala that he was struggling to get the matter listed for the last six months.

“The Appu Ghar land came to the Supreme Court on a petition by the SCBA, and the Bar was given only one block with reluctance. The construction on the land was to begin during ex-CJI N.V. Ramana’s tenure. For the last six months, we have struggled to get the matter listed. Treat me like an ordinary litigant,” Singh said.

The CJI then remarked, “You can’t demand land like this. You tell us the day we are sitting idle for the whole day.” To this, Singh replied, “I am not saying that you are sitting idle for the whole day. I am only trying to get the matter listed. If it is not done, I will have to escalate and take it to your lordships’ residence. I don’t want the bar to be taken like this.” Chandrachud then got agitated and said, “Don’t threaten the chief justice. Is this a way to behave? Please sit down. It will not be listed like this. Please leave my court. I will not list like this. I will not be cowered down by you.”

“Vikas Singh, please don’t raise your voice. As a president, you should be a mentor and leader to the bar. I am sorry; you are reducing the level of dialogue. You have filed an Article 32 petition, claiming that the land allotted to the Supreme Court should be handed over to the Bar for the construction of chambers. We will deal with the matter when it comes up. Please don’t try and twist our arm to give you the relief you want,” the CJI said.

“You are asking for land allotted to the SC to be given to the Bar. I have announced my decision. It will be taken on the 17th, and it will not be the first on board,” he added.

The SCBA president said, “If my lords want to dismiss it, please do it. But don’t do that; it is not listed.” The CJI replied, “I have announced my verdict. It’s on March 17, and it will not be listed at serial number 1, Mr. Singh.” The senior lawyer refused to slow down and said the bar has always supported the court.

“I never want to be unreasonable, but I am forced to be so in this case,” he said.

Chandrachud then told Singh, “I am the Chief Justice. I have been here since March 29, 2000. I have been in this profession for 22 years. I have never allowed myself to be browbeaten by a member of the bar, a litigant, or anyone else. I will not do that in the final two years of my career.” Refusing to keep quiet, Singh said, “This is not the attitude. If the bar is cooperating with the court, it doesn’t mean it should be taken for a ride. That is something about which I feel very strongly. I want to make this very clear.” The CJI then said, “Please sort your agenda outside the courtroom,” and called the next matter.

As the mentioning of the cases ended, senior advocate Kapil Sibal, who was present in court for the Shiv Sena case, apologised to the Bench on behalf of the bar and said, “I’m sorry for what happened this morning. I apologise. There is a Lakshman Rekha that none of us should cross. I don’t think that the bar should transgress the limits of decorum.” The CJI said, “There is no reason to behave like this. We sit here the whole day and take up 70–80 matters in a day. For all these matters, I sit with my staff in the evening and give them dates.” Senior advocate Neeraj Kishan Kaul also expressed apology and said, “We all join and feel equally anguished by what happened

In Brief:

The U.S. House Foreign Affairs Committee voted on Wednesday along party lines to give President Joe Biden the power to ban Chinese-owned TikTok, in what would be the most far-reaching U.S. restriction on any social media app. Lawmakers voted 24 to 16 to approve the measure to grant the administration new powers to ban the ByteDance-owned app — which is used by over 100 million Americans — as well as other apps considered security risks. “TikTok is a national security threat ... It is time to act,” said Representative Michael McCaul, the Republican chair of the committee who sponsored the Bill. “Anyone with TikTok downloaded on their device has given the CCP [Communist Party of China] a backdoor to all their personal information. It’s a spy balloon into their phone.”

Evening Wrap will return tomorrow.

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