On March 2, the Supreme Court of India ordered a new format for appointing Chief Election Commissioners and Election Commissioners. As per the SC orders, the appointment will be made by a committee comprising the PM, the Leader of Opposition and the Chief Justice of India.
Appointment of an Election Commissioner shall be on the recommendation of a committee comprising PM, CJI & Leader of Opposition in Lok Sabha: Supreme Court Constitution Bench
— ANI (@ANI) March 2, 2023
With this order, the apex court has asked the government to follow a format that the Court itself rejected for appointing judges under National Judicial Appointment Commission (NJAC).
The Supreme Court discussed the importance of “fair and legal” conduct during the electoral process. It added that the ECI is charged with the humongous task of conducting elections in the Parliament and the State Legislatures. The power that ECI has under Section 324 is plenary, subject only to any law made by the Parliament of the State Legislature. The Election Commission is duty-bound to act fairly and legally, abiding by the provisions of the Constitution and the directions of the Court.
The apex court said that the fate of the political parties, political leaders and democracy rests in the hands of the Election Commission. The power to the people through the ballot is central to democracy, and the means to gain power in a democracy must remain pure and abide by the Constitution and the laws, the Court said. Hinting towards “treating political parties with an uneven hand unfairly and arbitrarily”, the Court called the possibility of such aspects would breach the mandate of Article 14 that guarantees equality.
J. Joseph: Any action or omission by the Election Commission in holding the poll which treats political party with uneven hand…in an unfair or arbitrary manner would be in the teeth of A. 14.
— Live Law (@LiveLawIndia) March 2, 2023
The Court emphasised that the EC must act within the Constitutional framework and the laws and cannot transgress either mandate and still claim to be independent. Moving ahead, the Court said that the appointment of CEC and ECs must be impartial, and anything that might give an impression that the Election Commission is appointed by less than fair means must be banished.
The Court said, “There cannot be any doubt that the ECI is to perform the arduous task of remaining aloof from all forms of subjugation by interference by an executive. An executive can bring an otherwise independent body to its knees by starving it off and cutting off the financial wherewithals and resources required for its efficient and Independent functioning.”
J. Joseph: What are the ways in which an executive can bring an otherwise independent body to its knees is by starving it off and cutting off the the requisite financial wherewithals and resources required for its efficient and Independent functioning.
— Live Law (@LiveLawIndia) March 2, 2023
In its order, the Court said, “As far as the appointment to the post of Chief Election Commissioner and Election Commissioners are concerned, the said shall be done by the President of India based on the advice tendered by the committee consisting of the Prime Minister, Leader of Opposition in the Lok Sabha, if no such leader then the leader of the largest party in opposition in the Lok Sabha having largest numerical strength and the CJI.”
the President of India on the basis of the advise tendered by the committee consisting of the Prime Minister,Leader of Opposition in the Lok Sabha, if no such leader then the leader of the largest party in opposition in the Lok Sabha having largest numerical strength,and the CJI
— Live Law (@LiveLawIndia) March 2, 2023
The Court added that the orders would remain in place until the Parliament makes a law. It added, “As regard to the relief relating to putting in place a permanent Secretary for the ECI and charging its expenditure to the consolidated fund of India is concerned, the Court makes a fervent appeal that the Union of India and the Parliament make necessary changes so that the ECI becomes truly independent.”
the Court makes a fervent appeal that the Union of India and the Parliament make necessary changes so that the ECI becomes truly independent.
— Live Law (@LiveLawIndia) March 2, 2023
It is interesting to see that the apex court ordered the government to make “necessary changes” to ensure ECI becomes “truly independent”, suggesting ECI, to date, was not working independently. The same can be applied to the appointment of the Supreme Court and the High Court as a closed group of judges known as the collegium does it.
Appointment of CEC in India
CEC heads the Election Commission of India and is appointed by the President. CEC is mostly an IAS officer. Once elected, it is not easy to remove the CEC from its post as two-thirds of the Lok Sabha and Rajya Sabha must be present to vote against him/her.
