In the run up to the Lok Sabha elections next year, the Supreme Court delivered a crucial verdict that called for the appointment of the Chief Election Commission and Election Commissioners by a high-powered committee that included the Prime Minister, Leader of Opposition (or leader of the single largest opposition party) and Chief Justice of India.
The system proposed is similar to that of the committee constituted for the appointment of the Central Bureau of Investigation (CBI) Director.
A five-judge Constitution Bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar said this system would continue till the Centre comes up with a law on appointments. The top court also directed the Centre to make necessary changes to carve out a separate secretariat for the election commission and funding from the Consolidated Fund of India.
This process will continue to hold good until a law is made by Parliament, the bench said.
The Supreme Court’s decision came on a batch of pleas that sought a change in the current system of appointing members to the poll panel.
Reading out the detailed judgement, Justice Joseph noted that there was an increase in the criminalization of politics and a huge surge in the role of money power. He further noted that a large section of the media had abdicated its role and had become partisan.
“An Election Commission that does not guarantee rule of law is against democracy. In its wide spectrum of powers, if exercised illegally or unconstitutionally, it has an effect on the outcomes of political parties,” the bench said. The apex court said the Election Commission must be independent. It cannot claim to be independent and then act in an unfair manner, the court pointed out. “A person in a state of obligation to the State cannot have an independent frame of mind. An independent person will not be servile to those in power,” Justice Joseph added.
The top court noted that several decades have passed and political parties have not yet introduced a separate law to govern ECI appointments.
“A law cannot be a perpetuation of what is existing where the Executive has the absolute say in appointments…Political parties would have a reason to not seek a law, which is clear to see. A party in power will have an insatiable quest to remain in power through a servile Commission,” the bench added.
In a separate but concurring opinion, Justice Rastogi said, Election Commissioners must enjoy the same security as that of their chief. Service conditions should not be varied, he said adding, “Election Commissioners have to be kept free from executive interference.”