New Delhi: In a significant verdict that takes away the government’s power to appoint the Chief Election Commissioner (CEC) and the two Election Commissioners in the Election Commission of India (ECI), the Supreme Court on Thursday ruled that these appointments will be done by the President on the advice of a committee comprising the Prime Minister, Leader of Opposition (LOP) in the Lok Sabha and the Chief Justice of India.
The top court also made it clear that if there is no LOP, as has been the case for the last nine years, the leader of the single largest Opposition party will be in the committee.
This will be similar to the appointment of CBI director, who as per the Lokpal Act of 2014, has to be picked up by a committee consisting of the Prime Minister, LOP/Leader of the single largest Opposition party and Chief Justice of India (CJI) or a Supreme Court judge nominated by the CJI.
In a unanimous verdict, the five-judge Constitution bench headed by Justice K.M. Joseph, held that this norm will continue to hold good till a law on the issue is made by Parliament.
The bench delivered its verdict on a batch of pleas seeking a collegium-like system for the appointment of Election Commissioners and the Chief Election Commissioner. Apart from Justice Joseph, other judges on the Constitution bench included Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C.T. Ravikumar.
While concurring with the conclusion of the judgment pronounced by Justice Joseph, Justice Ajay Rastogi said that the grounds and the procedure of removing the Election Commissioners should be the same as that of Chief Election Commissioner — through impeachment.
As of now, the Election Commissioners can be removed by the government on the recommendation of the CEC. However, since Justice Rastogi’s views are recommendatory in nature, it will not be binding on the government to remove other two ECs through impeachment.
The verdict came on public interest petitions that sought a law governing the appointment of the CEC and ECs. The apex court while hearing the case in November 2022 noted that the appointment of Arun Goel as EC had been carried out with “lightning speed”, with the procedure taking less than 24 hours on November 18 from start to finish. During the course of the hearing, the bench had called for the records relating to the appointment EC Arun Goel but while calling for the records, the Constitution bench had allayed the apprehension of the government saying it will have no adverse bearing on his appointment as EC.
A fresh vacancy in ECI will come up next year when the term of EC Anup Chandra Pandey ends in February 2024, days before the country goes for general elections.
Giving the verdict, the bench said election in a democracy should be fair and the buck stops with the Election Commission to ensure that its purity is maintained. The bench further said that an ECI, which does not ensure free and fair role in the process, guarantees breakdown of rule of law, which is the bedrock of democracy. The bench added that democracy is fragile and would collapse if “lip service” is paid to rule of law.
Political parties welcomed the order saying the ruling is victory of democracy and the judgment would pave the way for free and fair elections in the country.
“Welcoming the historic Supreme Court verdict on Election Commission. Insulating EC from Government influence and dependence will secure the integrity of the electoral process. A truly Independent EC alone can fulfil the Constitutional mandate of conducting free and fair elections,” Congress leader Anand Sharma said.
“Supreme Court’s landmark order is a democratic victory! We welcome the decision of the Constitution Bench on the appointment of Election Commissioners and Chief Election Commissioner. Will of the people prevails over the ill-fated attempts of the oppressive forces!” said West Bengal Chief Minister Mamata Banerjee. TMC MP Derek O’Brien said the ruling will transform the “Extremely Compromised EC” to an “Extremely Competent EC”.
AAP leader Sanjay Singh also said that the judgment will strengthen democracy. “Now PM, LoP and CJI will decide who will sit in Election Commission. EC used to fix election dates by looking at PM’s rallies, announcements of schemes which called into question the impartiality of the Election Commission. This decision will strengthen democracy,” he said.
Former CEC S.Y. Qureshi said the ECI itself has been demanding this collegium system for more than 20 years. “I have written about it as incumbent CEC then, and as former CEC repeatedly that the appointment of election commissioners should be through collegium. The elevation of ECs as CEC should be automatic as per seniority and protection from removal which is available to the CEC should be extended to the two other ECs as well,” said Quraishi.
New EC selection process
President to appoint Chief Election Commissioner, Election Commissioners on the advice of a committee comprising the PM, Leader of Opposition (LOP) in the Lok Sabha and Chief Justice of India.
If there is no LoP, the leader of the single largest Opposition party to be in the committee.
A fresh vacancy in ECI will come up when the term of EC Anup Chandra Pandey ends in February 2024, weeks before the general elections.
Unanimous verdict by five-judge Constitution bench of Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy, Justice C.T. Ravikumar
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