NEW DELHI: Taking out the executive’s exclusive hand in the appointment of the Chief Election Commissioner and Election Commissioners, the Supreme Court, in a landmark decision on Thursday, ruled that their selection be done by a three-member committee comprising the Prime Minister, the leader of the opposition in the Lok Sabha and the Chief Justice of India, thus nullifying a practice that has been in vogue since Independence.
A five-judge constitution bench of Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, in a unanimous verdict, disapproved of the present system of the Centre appointing members of the poll watchdog and brushed aside the government’s stiff opposition to judicial interference in its domain. Justifying its decision, the bench said there is a legislative vacuum as Parliament, in the last seven decades, did not frame a law as envisaged in the Constitution.
The bench said, “ECs, including the CEC, blessed with nearly infinite powers, must be chosen not by the executive exclusively and particularly without any objective yardstick,” it said.
In its verdict running into 378 pages, the bench said the appointment of CEC and ECs should be done in a manner so as not to frustrate their six-year tenure, saying that a short tenure also hampers the independence of the panel. The court said any perception that a “yes man” appointed by the Centre in the poll panel will decide the fate of democracy has to be removed and the commission should be made “fiercely independent, honest, competent and fair”. It also favoured the same process for the removal of ECs as the CEC.
“We declare that as far as appointments to the posts of Chief Election Commissioner and Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a committee consisting of the Prime Minister, leader of the opposition in the Lok Sabha and, in case, there is no such leader, the leader of the largest party in the opposition in the Lok Sabha, and the Chief Justice of India. This norm will continue to hold good till a law is made by Parliament,” said the bench.
Elaborating on the basic criteria for appointment to the poll body, the bench said, “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 democracy. An independent person cannot be biased. Holding the scales evenly even in the stormiest of times, not being servile to the powerful, but coming to the rescue of the weak and the wronged, who are otherwise in the right, would qualify as true independence.”
Referring to a very wide spectrum of powers exercised by the commission for holding election and recognising political parties, the bench said if the poll panel acts unfairly or illegally then it has a “telling and chilling effect on the fortunes of the political parties”. “Therefore, any action or omission by the 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,” said Justice Joseph, who penned the main judgment.
The bench said it is the CEC and the ECs at whose table “the buck must stop” and the commission must act within the constitutional framework and the laws as it was its duty to ensure that democracy is always preserved and fostered.
It said the role of the commission is more important as criminalisation of politics and impact of money power have become a nightmarish reality. It said, “The faith of the electorate in the very process, which underlies democracy itself, stands shaken. The impact of ‘big money’ and its power to influence elections, the influence of certain sections of media, makes it also absolutely imperative that the appointment of the Election Commission, which has been declared by this court to be the guardian of the citizenry and its fundamental rights, becomes a matter which cannot be postponed further.”