New Delhi: In a landmark decision, the Supreme Court on Thursday (March 2) said that election commissioners should be appointed by the president based on advice from a committee comprising the prime minister, the leader of opposition in the Lok Sabha and the chief justice of India. The same process will also be used for appointing the chief election commissioner.
The bench comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar also urged the government to pass a law on appointments to the Election Commission.
The majority judgment was signed by Justices Joseph, Bose, Roy and Ravikumar. Justice Rastogi wrote a separate but concurring judgment.
Here, The Wire highlights salient features from this judgment:
On the EC’s role in a democracy
“Unlike demands of a formal democracy, the hallmark of a substantive democracy and if we may say so, a liberal democracy must be borne in mind. Democracy is inextricably intertwined with power to the people. The ballot, is more potent than the most powerful gun. Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner. Elections can be conflated with a nonviolent coup capable of unseating the most seemingly powerful governing parties, if they do not perform to fulfil the aspirations of the governed. Democracy is meaningful only if the sublime goals enshrined in the preamble to the Constitution receive the undivided attention of the rulers, namely, social, political and economic justice. The concepts of liberty, equality and fraternity must not be strange bedfellows to the ruling class. Secularism, a basic feature of the Constitution must inform all actions of the State, and therefore, cannot be spurned but must be observed in letter and spirit. Democracy can be achieved only when the governing dispensation sincerely endeavours to observe the fundamental rights in letter and spirit. Democracy also, needless to say, would become fragile and may collapse, if only lip service is paid to the rule of law. We cannot be oblivious to the fact that the founding fathers have contemplated that not only must India aspire for a democratic form of government and life but it is their unambiguous aim that India must be a Democratic Republic.”
“…The basic and underlying principle central to democracy is power to the people through the ballot. Abrahim Lincoln declared democracy to be Government of the people, by the people and for the people. A political party or a group or a coalition assumes reigns of governance. The purpose of achieving power is to run the Government. No doubt, the Government must be run in accordance with the dictate of the Constitution and the laws. Political parties not unnaturally come out with manifestos containing a charter of promises they intend to keep. Without attaining power, men organised as political parties cannot achieve their goals. Power becomes, therefore, a means to an end. The goal can only be to govern so that the lofty aims enshrined in the directive principles are achieved while observing the fundamental rights as also the mandate of all the laws. What is contemplated is a lawful Government. So far so good. What, however, is disturbing and forms as we understand the substratum of the complaints of the petitioner is the pollution of the stream or the sullying of the electoral process which precedes the gaining of power. Can ends justify the means? There can be no doubt that the strength of a democracy and its credibility, and therefore, its enduring nature must depend upon the means employed to gain power being as fair as the conduct of the Government after the assumption of power by it. The assumption of power itself through the electoral process in the democracy cannot and should not be perceived as an end. The end at any rate cannot justify the means. The means to gain power in a democracy must remain wholly pure and abide by the Constitution and the laws. An unrelenting abuse of the electoral process over a period of time is the surest way to the grave of the democracy. Democracy can succeed only in so far as all stakeholders uncompromisingly work at it and the most important aspect of democracy is the very process, the electoral process, the purity of which alone will truly reflect the will of the people so that the fruits of democracy are truly reaped. The essential hallmark of a genuine democracy is the transformation of the ‘Ruled’ into a citizenry clothed with rights which in the case of the Indian Constitution also consist of Fundamental Rights, which are also being freely exercised and the concomitant and radical change of the ruler from an ‘Emperor’ to a public servant. With the accumulation of wealth and emergence of near monopolies or duopolies and the rise of certain sections in the Media, the propensity for the electoral process to be afflicted with the vice of wholly unfair means being overlooked by those who are the guardians of the rights of the citizenry as declared by this Court would spell disastrous consequences.”
“…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. Equally, the sterling qualities which we have described which must be possessed by an Election Commission is indispensable for an unquestionable adherence to the guarantee of equality in Article 14. In the wide spectrum of powers, if the Election Commission exercises them unfairly or illegally as much as he refuses to exercise power when such exercise becomes a duty it has a telling and chilling effect on the fortunes of the political parties. Inequality in the matter of treatment of political parties who are otherwise similarly circumstanced unquestionably breaches the mandate of Article 14. Political parties must be viewed as organisations representing the hopes and aspirations of its constituents, who are citizens. The electorate are ordinarily, supporters or adherents of one or the other political parties. We may note that the recognition of NOTA, by this Court enabling a voter to express his distrust for all the candidates exposes the disenchantment with the electoral process which hardly augurs well for a democracy. Therefore, 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.”
On the new appointment process
“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.
We make it clear that this will be subject to any law to be made by Parliament.”
On Arun Goel’s appointment
“We are a little mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him. Whether that be, we notice that 18.11.2022 was a Friday and very next day, after the Court had directed the case to be listed to 22.11.2022, for considering the matter.”
“…Since the Constitution Bench has been constituted to consider the need for a different method of appointment of the Chief Election Commissioner and the Election Commissioners, the procedure involved in the appointment as has been followed throws up certain pertinent questions. Appointment is, admittedly, made from a panel of Senior Civil Servants, both retired and serving. Learned Attorney General would contend that the appointment is made from a panel of Officers. The current appointee was due to retire on 31.12.2022. From the date of birth of the other three persons, who formed the panel, we find that one of the persons had superannuated, apparently, in the year 2020. Another Officer, whose name figured in the panel had also superannuated in the year 2020. The only other Officer, who was considered with the appointee, had also superannuated in the year 2020. As on 18.11.2022, if any of the three were considered and appointed, they would have had a tenure of less than three years. This is for the reason that, under Section 4 of the 1991 Act, an Election Commissioner is entitled to a term of six years, subject, however, to the condition that the Officer would have to vacate the Office upon his reaching the age of 65 years. In fact, even the appointed Officer was due to retire on 31.12.2022, at the age of sixty years. He would have a term of a little over five years, on the basis of the appointment made on 18.11.2022. He would be appointed not as a Chief Election Commissioner but as an Election Commissioner. Both the Chief Election Commissioner and the Election Commissioner, as per Section 4 of the 1991 Act, are to be appointed for a term of six years.”
Read the full text of the judgment below.
SC judgment on EC appointments by The Wire on Scribd