On Election Commission Appointments, Supreme Court’s Massive Order

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Election Commissioners will be appointed on the advice of the Prime Minister, the Leader of Opposition and the Chief Justice of India, the Supreme Court ruled today in a landmark order aimed at insulating the top election body from political interference.
But in what many believe gives the government an out, the court said the order will hold good “until a law is made by parliament”.

The Chief Election Commissioner and the two election commissioners, who oversee polls across the country, will be appointed by the President on the advice of a panel that gives the opposition and the judiciary a say in the process. If there is no Leader of Opposition in the Lok Sabha, the single largest opposition party will be on the panel, the Supreme Court said.

“Elections should undoubtedly be fair and the buck stops with the Election Commission of India to ensure its purity is maintained,” said a five-judge Constitution bench led by Justice KM Joseph.

“In democracy, the purity of elections must be maintained or else it would lead to disastrous consequences,” said the unanimous verdict that comes before a string of state polls and the 2024 national election. Democracy is fragile and will collapse if lip service is paid to rule of law, the judges said.

“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,” said the Supreme Court.

While delivering the far-reaching verdict, the Supreme Court called for the Election Commission to have an independent secretariat, rule-making powers, an independent budget, and protection from impeachment. The court said the Election Commission should draw funds directly from the Consolidated Fund of India, instead of having to go to the Prime Minister’s Officer and the Law Ministry for funds and approvals.

“The Election Commission must act within the constitutional framework and law and cannot act in an unfair manner,” the court said, adding that an Election Commission that didn’t have a free and fair role in the process “guarantees breakdown of rule of law, which is the bedrock of the democracy”.

“There cannot be any doubt that 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.”

The Supreme Court had in earlier hearings stressed on a “fair and transparent mechanism” so that the “best man” is appointed as the Chief Election Commissioner of the country.

In the current system, the President appoints the Chief Election Commissioner and two commissioners for six years on the recommendation of the Prime Minister, and they are usually former bureaucrats.

Petitions had sought a collegium-like system for appointing election commissioners, arguing that the existing process was driven by “whims and fancies of the executive”.

The petitions said unlike the appointments of the CBI director or corruption watchdog Lokpal, where the leader of the Opposition and judiciary have a say, the Centre unilaterally appointed members of the Election Commission.

The Supreme Court had questioned the Centre on the “tearing hurry” with which it appointed former IAS officer Arun Goel as an Election Commissioner at “lightning speed”, within 24 hours. The judges had asked to see the files, saying they wanted to know if there was any “hanky-panky”.

Arun Goel, a 1985-batch IAS officer, took voluntary retirement on November 18 and was appointed Election Commissioner a day later. He took charge on November 21. He is in line to be the next Chief Election Commissioner in 2025, when the current chief’s term ends.

The Supreme Court, on examining the file, asked how the Ministry of Law and Justice shortlisted four names for Election Commissioner. None of them would get even six years as Election Commissioner, it said.

The opposition Congress called for the resignation of all three Election Commissioners. “They can be appointed and eligible if the selection committee decides. There will be an attempt by the government to amend the Supreme Court decision, try to weaken the order,” said Congress leader Abhishek Manu Singhvi, calling the Supreme Court order “historic”.

Other opposition parties also welcomed the ruling. “Huge. So Extremely Compromised (EC) can again strive to become Extremely Competent,” Trinamool Congress leader Derek O’Brien posted

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