In Landmark Order, SC Says CEC, ECs to be Appointed by President on advice of PM, LoP, CJI

New Delhi: In a crucial verdict passed on Thursday, the Supreme Court ordered that the executive would have no role to play in the appointment of the Chief Election Commissioner (CEC) and election commissioners. The appointments, the top court ruled, would henceforth be done by the President of India, as advised by a committee comprising the Prime Minister, Leader of Opposition (or leader of the largest Opposition party) in the Lok Sabha and the Chief Justice of India.

Incidentally, the current Parliament does not have a Leader of the Opposition as the largest Opposition party, the Congress, does not hold 10% of the seats required for the post.

A five-judge constitution bench headed by Justice KM Joseph, in a unanimous verdict, held that this norm would continue to hold good till a law on the issue is made by Parliament.

The constitution bench also comprised Justices Ajay Rastogi, Anirudhha Bose, Hrishikesh Roy and CT Ravikumar. It was hearing a bunch of petitions recommending reforms in the appointment of the CEC and "any process that seeks to improve the election process before this Court must be considered.”

Justice Rastogi, who concurred with the lead judgement authored by Justice Joseph, delivered a separate verdict with his reasoning, said a PTI report.

The petitions were seeking a collegium-like system for the appointment of election commissioners and the Chief Election Commissioner.

In its order, according to a report in Bar & Bench, the court said that the “EC has to be independent, it cannot claim to be independent then act in an unfair manner,” adding that in a democracy, the purity of election must be maintained or else it would lead to disastrous consequences.

It said that elections in a democracy should undoubtedly be fair and the buck stops with the Election Commission to ensure that its purity is maintained.

“An Election Commission that does not guarantee rule of law is against democracy. In its wide spectrum of powers, if exercised illegally or unconstitutionally, it has an effect on the outcomes of political parties...

...Election Commission has to be independent, it cannot claim to be independent then act in an unfair manner. A person in state of obligation to the State cannot have an independent frame of mind. An independent person will not be servile to those in power," said the bench, as quoted by Bar & Bench.

The country’s top court also said the EC has to remain “aloof” from all forms of subjugation by the executive, a Live Law report said. “One of the ways it can interfere is cutting off financial support. A vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning,” the report said.

The bench added that democracy was fragile and would collapse if "lip service" is paid to rule of law.

Referring to Article 324 of the Constitution which deals with the appointment of members of Election Commission it said Parliament had not passed any law in this regard, as required by the Constitution.

Article 324 (2) says the Election Commission consists of the Chief Election Commissioner and election commissioners, if any, as the President may from time to time fix and their appointments shall, subject to the provisions of any law made in that behalf by parliament, be made by the President.

Pointing out that several decades had passed and political parties had not introduced a separate law to govern appointment to the ECI, it said:

"Article 324 has a unique background. Several decades have passed by. Political parties of varying hues have not introduced a law. A law cannot be perpetuation of what is existing, of the executive having the absolute say in appointments. There is a lacuna as the petitioners have pointed out. Political parties would have a reason to not seek a law, which is clear to see. A party in power will have an insatiable quest to remain in power through a servile Commission."

The apex court had reserved its judgement on the issue on November 24 last year. During the hearing in the matter, the top court had questioned the "haste" and "tearing hurry" with which the Centre had appointed ex-bureaucrat Arun Goel as an Election Commissioner, saying his file travelled at "lightning speed" within departments in 24 hours.

The Central government had vehemently resisted the observations, with Attorney General R Venkataramani contending that the whole issue pertaining to his appointment needed to be looked at in entirety.

The apex court had asked how the Union law minister shortlisted a panel of four names that was recommended to the prime minister for appointment as election commissioner when none of them would have completed the stipulated six-year tenure in office.

It had perused the Centre's original file on Goel's appointment, and said, "What kind of evaluation is this? Although, we are not questioning the merits of Arun Goel's credentials but the process."

As the bench questioned the "lightning speed" with which Goel was appointed as an EC, Venkataramani, the government's law officer, had urged the bench not to make observations without looking into the entire issue of the appointment process.

Under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, an EC can have a tenure of six years or up to the age of 65, whichever is earlier.

Goel's appointment as an EC came under scrutiny by the top court which had sought from the Centre the original records pertaining to his appointment for perusal, saying it wanted to know whether there was any "hanky panky".

The top court, which had rejected the Centre's objections to its order for producing the original file, had said it wanted to know whether everything was "hunky dory" in the appointment process as claimed by the government.

On November 19, Goel, a Punjab cadre IAS officer, was appointed as election commissioner.

Goel would be in line to be the next CEC after incumbent Rajiv Kumar demits office in February 2025. His total tenure in the Election Commission would be of over five years.

He will join Kumar and Election Commissioner Anup Chandra Pandey on the poll panel.

There was a vacancy in the Election Commission (EC) following the retirement of previous CEC Sushil Chandra in May.

Goel was the secretary in the Ministry of Heavy Industries and his voluntary retirement came into effect on November 18 last year.

(With inputs from PTI)