Supreme Court Says Committee of PM, Leader of Opposition, CJI Should Appoint Election Commissioners

The bench noted that none of the political parties who held power had passed a law on appointments to the EC. This is a "lacuna".

New Delhi: 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.

A constitution bench of Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar said this practice will be in effect until parliament passes a law on the matter, LiveLaw reported. The bench was hearing a back of pleas seeking reform in the process of appointing election commissioners to the Election Commission of India. At present, the pleas said, the executive enjoys the power to make appointments in violation of Article 324(2) of the Constitution.

Currently, the president appoints the chief election commissioner and two commissioners for a term of six years each on the recommendation of the prime minister. The appointees are usually former bureaucrats.

Election commissioners serve for six years or till they turn 65. This means the earliest the new mechanism will kick in is February 2024, when Anup Chandra Pandey turns 65, unless parliament enacts a new law to govern the selection process.

The bench said, according to Bar and Bench:

“The Election Commissioners will be appointed by the President of India on the advice of a committee consisting of the Prime Minister, and leader of Opposition in Lok Sabha, or leader of largest opposition party in cases where there is not enough numerical strength for a leader of opposition, and the Chief Justice of India.

This law will continue to hold good until a law is made by Parliament. The Court asks the government to make a necessary change with regard to funding of the Election Commission from the Consolidated Fund of India and the need for separate Secretariat.”

The bench noted that none of the political parties who held power had passed a law on appointments to the EC. This is a “lacuna”, LiveLaw quoted the judges as saying, and framing a law under Article 324 is a necessity:

“Article 324 has a unique background. Several decades have passed by. Political parties of varying hues have not introduced a law. A law cannot be perpetuation of what is existing, of the executive having the absolute say in appointments. There is a lacuna as the petitioners have pointed out. 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 EC must act in a free and fair manner, the judges added. “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.”

“The means to gain power in a democracy must remain pure and abide by the Constitution and the laws. EC cannot claim to be independent then act in an unfair manner. A person in state of obligation to the state cannot have an independent frame of mind. An independent person will not be servile to those in power,” the judges said.

The executive must not be involved in the EC’s functioning, it continued. “One of the ways it can interfere is cutting of financial support. A vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning.”

Justice Rastogi, in a concurring judgment, said that the process of removing an election commissioner should be the same as that for the chief election commissioner.