The Supreme Court upheld in its judgement dated March 2, 2023 the independence of the Election Commission of India while taking a stand that the Executive cannot exclusively appoint Commissioners. While commenting on the need for independence of the Commission, the bench of Justices KM Joseph, Aniruddha Bose, Hrishikesh Roy, CT Ravikumar and Ajay Rastogi referred to a plethora of precedents which supported this contention raised by the petitioners.
While a lot has been said by the court to uphold the independence of the Election Commision, there are some, what we would like to call, golden words, that have been spoken in this very reasoned judgement. Here are a few extracts from the judgment that deserve to be highlighted and remembered by us for a long time to come:
The cardinal importance of a fiercely independent, honest, competent and fair Election Commission must be tested on the anvil of the rule of law as also the grand mandate of equality.(Para 165)
An Election Commission which does not ensure free and fair poll as per the rules of the game, guarantees the breakdown of the foundation of the rule of law. (Para 165)
Inequality in the matter of treatment of political parties who are otherwise similarly circumstanced unquestionably breaches the mandate of Article 14. (Para 165)
Any action or omission by the Election 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. (Para 165)
“An essential component of a constitutional democracy is its ability to give and secure for its citizenry a representative form of government, elected freely and fairly, and comprising of a polity whose members are men and women of high integrity and morality. This could be said to be the hallmark of any free and fair democracy.” [Para 28-Public Interest Foundation and others v. Union of India and others (2019) 3 SCC 224]
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 the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy. (Para 186)
Criminalisation of politics, a huge surge in the influence of money power, the role of certain sections of the media where they appear to have forgotten their invaluable role and have turned unashamedly partisan, call for the unavoidable and unpostponable filling up of the vacuum. (Para 223)
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. (Para 225)
We have already elaborated and found that core values of the Constitution, including democracy, and Rule of Law, are being undermined. (Para 226)
The court declared that the Election Commissioners must not be chosen by the Executive exclusively and not without any objective yardstick. The court also refers to the Model Code of Conduct and the Symbols Order to infer that since the Commission is expected to act in the face of defiance, and possess a powerful weapon, “the exclusive power to appoint with the Executive, hardly helps.” (Para 172). Citing precedents, the court has also pointed out that the Election Commission has plenary powers and could exercise the same to ensure free and fair elections.
Referring to Constituent Assembly debates, the court has concluded that usage of the words ‘subject to any law to be made by Parliament’ under Article 324 of the Constitution meant that the Election Commission members cannot be exclusively appointed by the Executive.
The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission, (Para 219)
The court held that the absence of such a law creates a void or vacuum. The court, pointing to the intention of political parties that never contemplated a law concerning appointment of Election Commissioners, said,
There is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation. (Para 221)
As long as the party that is voted into power is concerned, there is, not unnaturally, a near insatiable quest to continue in the saddle. A pliable Election Commission, 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. (Para 222)
While the court said it cannot issue a writ of mandamus to the legislature to legislate, it also said,
In the unique nature of the provision, we are concerned with and 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. (Para 227)
The court opined that the appointment by the Executive of Election Commissioners was “to be a mere transient or stop gap arrangement and it was to be replaced by a law made by the Parliament” (Para 227).
The court viewed this to be a clear and inevitable conclusion of Article 324.
The court thus deemed it appropriate that:
The appointment of the Chief Election Commissioner and the Election Commissioners, shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha, and in case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength, and the Chief Justice of India. (Para 230)
We make it clear that this will be subject to any law to be made by Parliament. (Para 231)
The complete judgement may be read here:
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