Supreme Court: In a petition filed, stating that the current system of the executive appointing the members of the Election Commission is unconstitutional and violates Article 342(2) of the Constitution, and seeking an independent, collegium-like system for the said appointments, the Constitution Bench comprising of K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ. partly allowing the petition, unanimously declared that, as far as the appointments of Chief Election Commission (‘CEC’) and Election Commission (‘EC’), the same shall be done by a committee consisting of the Prime Minister of India, leader of opposition in Lok Sabha and in case there is no such leader the leader of the largest party in opposition in the Lok Sabha and the CJI. This norm will continue to hold good till the law is made by Parliament.
Further, it provided a relief by putting in place a permanent secretariat for the EC and charging its expenditure from the consolidated fund of India, the court makes a plea that UOI and Parliament may consider bringing necessary changes so that EC becomes truly independent.
The judgment was delivered by Justice KM Joseph. Justice Ajay Rastogi agreed with the view but gave additional suggestions on the committee and particularly on insulating the Election Commissions from the Executive.
The Court said that unlike the demands of a formal democracy, the hallmark of a substantive democracy or a liberal democracy must be borne in mind. Democracy is inexplicably intertwined with power to the people; the ballot is more potent than the most powerful gun. Democracy facilitates the peaceful revolution at the hands of a common man, if elections are held in a free and fair manner, elections can be conflated with a non-violent coup capable of unseating the most unseeingly powerful governing parties if they do not perform to fulfill the aspirations of the governed. Democracy can only be achieved when the governing mechanism sincerely endeavors to observe the fundamental rights in letter and spirit. It further said that the essential hallmark of the genuine democracy is the transformation of the ruled into a status entry clogged with rights which in the case of Indian constitution also consists of FR which are also freely exercised.
The Election Commissioner is charged with the duty and has extraordinary powers to hold elections in both State legislatures and the Parliament from time to time. This is an enormous task, but power under Article 324 is subject to Indian law which may be made by the Parliament or the State legislatures. Undoubtedly, the Election Commission is duty bound to act in a fair and legal manner.
The faith of the political parties and their candidates and of democracy itself is allowed to rest in the hands of the Election Commission. There may be officers who assist the commission and important decisions must be taken by those with helm of the affairs. It is the Chief Election Commissioner (‘CEC’) and the Election Commissioner (‘EC’) that whose table the buck must stop.
Quoting Abraham Lincon’s famous Quote that “democracy is a government of the people, for the people and by the people” the Court said that the basic and underlying principle central to democracy is power to the people through the ballot. The Court said that assumption of power itself through the electoral process in a democracy cannot and should not be perceived as an end, the end cannot justify the means, the means create power in a democracy must remain only pure and abide by the constitution and the laws. The Court also commented that any action or omission by the EC holding the court, treats political party with an uneven hand or in an unfair or arbitrary manner would be an ethanol to Article 14.
Defining independence, the Court said that it is a value which is only one of the elements in the amalgam of virtue that a person should possess with competence of a man which is not contemplated with fears, a person may be excellent, he may be honest, but the quality of independence transcends the qualities of professional excellence and honesty.
The EC must act within the constitutional framework and laws, it cannot transgress the bandwidth of either and still claim to be independent. It cannot act in an unfair manner either.
An independent person cannot be biased , holding the scales evenly in the stormiest of times. Not being survived to the powerful but coming to the rescue of the weak, will qualify as true independence.
Further, it said that Article 334 has a unique background, the founding fathers clearly contemplated the law by the Parliament and did not intend the Executive inclusiveness in appointments to the ECs.
The Court said that justice must not only be done but seems to be done, the outpouring of demands for an impartial board for appointment of the members require it the least. There cannot be any doubt that the Election Commision of India is to perform the arduous task of remaining aloof from all forms of subjugation by the interference of the Executive. The executive can bring the independent body on its knees by cutting it off from the requisite finances. It is not unnatural if faced with the situation of not being supplied with enough funds and facilities, a vulnerable commission will come under the pressure of the executive, thus, it will result in an insidious functioning.
Thus, by partly allowing the petition it declared that, as far as the appointments of CE Cand EC, the same shall be done by a committee consisting of the Prime Minister of India, leader of opposition in Lok Sabha and in case there is no such leader the leader of the largest party in opposition in the Lok Sabha and the CJI. This norm will continue to hold good till the law is made by Parliament.
Further, it provided a relief by putting in place a permanent secretariat for the EC and charging its expenditure from the consolidated fund of India, the court makes a plea that UOI and Parliament may consider bringing necessary changes so that EC becomes truly independent.
Agreeing with above views, Justice Ajay Rastogi made some more suggestions:
Justice Ajay Rastogi said that to allow independence in the functioning of the EC, as a constitutional body, the office of CEC and ECs must be insulated from executive interference, and this is envisaged under proviso to Article 324(5). There are two procedural safeguards regarding the removal of CEC, first, he cannot remove from office except in like manner as the Judge of the Supreme Court, and second, the conditions of service to the CEC shall not be put to his disadvantage after his appointment.
However, second proviso to Article 324(5) postulates that removal of EC can be done only on the recommendation of the CEC the protection available to CEC is not available to other EC various reports have suggested that protection against removal should be given to other EC to ensure Independence of EC.
Agreeing on the constitution of the committee, he said that it is also desirable that the grounds of removal of election commissioners shall be the same as that of the CEC that is the like grounds of judges of the Supreme Court that is subject to recommendation of the CEC as provided in second proviso in Article 324(5) of the Constitution.
[Anoop Baranwal v Union of India Ministry of Law 2023 SCC OnLine SC 216, decided on 02-03-2023]
