Panel of PM, CJI and Opposition leaders to pick poll commissioners: SC

The Supreme Court on Thursday overturned the existing practice of appointing election commissioners and ordered appointments to be made on the advice of a panel of the Prime Minister, Chief Justice of India and the leader of the Opposition.

Effectively, the Chief Election Commissioner (CEC) and election commissioners will now be appointed on similar lines as the director of the Central Bureau of Investigation. A Constitution Bench comprising Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar said the new practice would continue until a law was passed by Parliament.

“We declare that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations by a three-member committee comprising the Prime Minister, leader of the Opposition of the Lok Sabha or, 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,” said the verdict.

At present, the President appoints the election commissioners on the advice of the Union Council of Ministers headed by the Prime Minister for tenures of six years, or up to the age of 65 years, whichever is earlier. There is no specific legislative process vis-à-vis their appointments.

On Thursday, the court passed its order on petitions seeking a new process of appointment of members of the Election Commission of India (ECI). “Any process that seeks to improve the election process before this court must be considered,” the bench said.

The bench noted that several political parties had come to power but none framed a law/process for appointments to the ECI. Stressing the independence of the poll panel, it said, “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 democracy. An independent person cannot be biased,” it said.

The bench emphasised that the ECI was 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. “Democracy is inexplicably intertwined with power to the people...Democracy facilitates the peaceful revolution in the hands of a common man if held in a free and fair manner,” it said.

Justice Rastogi said the grounds for the removal of election commissioners should be the same as the CEC’s. It should be on like grounds as those of a Supreme Court judge, he added, and subject to the recommendation of the CEC under the second provision of Article 324(5) of the Constitution. “The conditions of service of the election commissioner shall not be varied to his disadvantage after appointment,” he said.

In earlier hearings, one of the suggestions made before the court was forming a collegium comprising the PM, the Chief Justice of India, and the leader of the Opposition to select election commissioners. The court had said the appointment of election commissioners should be “above politics”.

In the last hearing in November, the bench questioned the Union government for clearing the appointment of Arun Goel as one of the election commissioners at a “lightning speed” when the case was sub judice. The Constitution bench told the Attorney General of India to produce documents related to Goel’s appointment.

The matter was referred to the Constitutional bench after a division bench of the apex court said there was a need to take a close look at the interpretation of Article 324 (powers and responsibilities of ECI).

Former CEC S Y Quraishi welcomed Thursday’s verdict, tweeting: “At last SC has clinched it. The demand has been pending for two decades. Good for the perception of neutrality of the Election Commission.”

Trinamool Congress leader Mamata Banerjee said: “(The) 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.”