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In a landmark judgement, the Supreme Court has on Thursday ordered overhauling the appointment process of the poll panel, by ruling that a committee comprising the Prime Minister, Leader of Opposition and the Chief Justice of India will appoint the Chief Election Commissioner and Election Commissioners until a law is put in place.
In a major shift, the top court gave the Opposition and the judiciary a say in the appointments that will be done by the President on the advice of the panel, by saying "a person, who is weak-kneed before the powers that be, cannot be appointed as an Election Commissioner".
"We are concerned with 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," a five-judge bench led by Justice K M Joseph said.
The unanimous verdict came after a batch of petitions filed by Anoop Baranwal, Ashwini Kumar Upadhyay, NGO Association for Democratic Reforms and Dr Jaya Thakur, seeking an independent mechanism for appointment of the CEC and ECs.
The court found the vacuum in the appointment process of the poll panel under Article 324 of the Constitution, saying the Executive was entrusted with the responsibility as "a mere transient or stop-gap arrangement".
This was to be replaced by a law made by Parliament, taking away the exclusive power of the Executive. However, no law was passed even after seven decades, though political parties of varying hues came to the helm during the period, it added.
Noting the adverse impact of the Executive appointing the CEC and ECs, the bench said, "A pliable EC, 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."
"Placing the exclusive power to appoint with the Executive hardly helps," Justice Joseph wrote on behalf of the bench, while adding that an Election Commissioner, entrusted under the Constitution to ensure free and fair polls is answerable to the nation.
Stressing the need for an independent EC, the bench further said, "A person, who is weak-kneed before the powers that be, cannot be appointed as an Election Commissioner." The court said that a "person who feels indebted to the one who appointed him" fails the nation and can have no place in the conduct of elections.
The bench, also comprising Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, passed the 378-page judgement.
Justice Rastogi, for his part, gave his own separate reasoning.
The court pointed out the Election Commission of India is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the Executive.
One of the ways in which the Executive can bring an otherwise independent body to its knees is by starving it or cutting off the requisite financial wherewithal and resources required for its efficient and independent functioning, the court noted.
It asked the Union government to seriously consider much-needed changes to ensure a permanent Secretariat to EC and also to cover its expenditure on the Consolidated Fund of India.
The court said the Chief Election Commissioner and Election Commissioners stand on a far higher pedestal in the constitutional scheme of things having regard to the relationship between their powers, functions and duties and the upholding of the democratic way of life of the nation, the upkeep of Rule of Law and the very immutable infusion of life into the grand guarantee of equality under Article 14.
Referring to the electoral scene in the country, the bench pointed out criminalisation of politics, with all its attendant evils, has become a nightmarish reality.
"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."
Emphasising the need for an independent person to be appointed as CEC and ECs, the bench said, "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."
It further said upholding the constitutional values, which are, in fact, a part of the Basic Structure, including democracy, the Rule of Law, the Right to Equality, secularism and the purity of elections otherwise, would, indeed, proclaim the presence of independence. "Independence must embrace the ability to be firm, even as against the highest," it said.
In his judgement, Justice Rastogi said there is a need to ensure that the working of the Election Commission under Article 324 of the Constitution facilitated the protection of peoples voting rights.
"Now that we have held that the right to vote is not merely a constitutional right, but a component of Part III (fundamental right) of the Constitution as well, it raises the level of scrutiny on the working of the Election Commission of India, which is responsible for conducting free and fair elections. It is a question of constitutional as well as fundamental rights," he wrote.
In his separate and concurring judgement on forming a panel of PM, LoP and CJI for appointment of CEC and ECs, the judge also said it is desirable that the grounds of removal of the Election Commissioners should be the same as that of the Chief Election Commissioner like a Supreme Court judge through impeachment process.
The grounds for removal of ECs should be such as a judge of the Supreme Court, subject to the recommendation of the Chief Election Commissioner as provided under the second proviso to Article 324(5) of the Constitution, he added.
