A five-judge constitution bench of the Supreme Court has decided that Election Commissioners will be appointed by the President of India on the advise of a Committee consisting the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India, until a law is passed in this regard. The bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar was adjudicating over a batch of petitions calling for established, transparent procedure for appointment of the members of the Election Commission of India (ECI). The bench had indicated their stance during the hearings when Justice Joseph had orally remarked that the least intrusive system would be where the Chief Justice is a part of the appointment committee. “We feel that his very presence will be a message that no mess up will happen… Even judges have prejudices. But, at least you can expect that there will be neutrality,” he said.
The bench had reserved the judgement on November 24, 2022.
It is pertinent to note here that while the hearings before the court were in progress, the Union government hastily appointed the Election Commissioner in November 2022, while the post was lying vacant since May 2022. The appointment was completed within 2 days. As per Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, the EC is supposed to have a term of 6 years or till he/she attains the age of 65, whichever is earlier. Arun Goel who took voluntary retirement from his post of Secretary, Ministry of Heavy Industries only 6 weeks ahead of his actual retirement, was immediately appointed as the EC.
While pronouncing the judgement in court, Justice Joseph emphasized that the Election Commission is duty bound to act in a fair and legal manner and to abide by the provisions of the Constitution and the directions of the Court. He further said that the ECI has to remain aloof from all forms of subjugation by the executive.
The bench also pointed out that there was “unrelenting abuse” of the electoral process. Stressing upon the independence of ECI, the bench said,
“The means to gain power in a democracy must remain pure and abide by the Constitution and the laws. EC cannot claim to be independent then act in an unfair. 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.”
On November 22, Justice Joseph questioned the dubious manner in which Election Commissioners have been appointed since 2007, so that they do not get a full term of 6 years as stipulated under the Act. As per the Act, the CEC is supposed to have a term of 6 years or till he/she attains the age of 65, whichever is earlier and appointments are being made so that the CECs get only 2 years or less and retire due to their age.
Justice Joseph also underlined the safeguards in other neighboring countries when it comes to appointing Election Commissioners and said, “Silences of the Constitution are being exploited by all. They (the Executive) have used it to their interest.”
During the hearings, the court had also noted that the right to vote is enshrined in the Constitution and not a statutory right as the Union government was contending.
The government’s stance
Although the court had highlighted during the hearings that governments over the years had failed to fill the legislative lacuna that was provided for by the Constitution, the Union government maintained that there was no trigger point for these proceedings.
When the bench had raised a question over the short terms the EC had gotten over the years, AG R Venkatramani clarified that the cumulative tenure of a person (as an EC and CEC) should be considered and by that yardstick all enjoyed around a five-year tenure which cannot be termed as a “short period”. The bench, however, pointed out that among the 4 names that were shortlisted, the Government selected names of those who were to retire before the 6 year tenure. The bench said that picking names who could not serve the full term could be a violation of Section 6 of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991.
On November 23, the Solicitor General Tushar Mehta submitted that “a presupposition that only with the presence of the judiciary, independence and fairness will be achieved, is an incorrect reading of the constitution.” He also contended that the power to appoint has been conferred upon the executive and the inclusion of the CJI in the appointment process would mean that the Constitution has to be rewritten
The AG submitted that all senior bureaucrats and officers at the state and the central government are taken into consideration while appointment.
Appointments at ECI
The election commission was a one member body until 1989. In 1989, the Rajiv Gandhi government appointed election commissioners, as provided in Article 324(1). This was again changed and the EC was made a body with just the CEC by the VP Singh government. Then, the PV Narasimha Rao government established the multi member nature of the commission, which was later converted into an Act.
As per the Union government, appointments at the ECI are made on the basis of seniority and due regard is given to all senior bureaucrats while considering the appointments.
The arguments in the case had concluded on November 24 and the judgement was reserved.
The detailed judgment in the case is awaited.
Related:
Appointment of Election Commissioner under SC scrutiny: The story so far
How Independent is India’s Election Commission?