Supreme Court steps in: Panel of PM, LoP and CJI will choose CEC, ECs

The bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, made it clear that “this will be subject to any law to be made by Parliament”.

Four of the five judges on the bench, meanwhile, rejected the prayer to grant the same protection as is available to the CEC in the matter of removal from office to the ECs too. Justice Rastogi favoured the idea of granting them equal protection.

The Supreme Court ruling, for now, will bring to an end the decades-old practice of the CEC and ECs being appointed on the advice of the Council of Ministers, as is laid down in the Constitution.

According to Article 324(2) of the Constitution, the CEC and ECs shall be appointed by the President, with the aid and advice of the Council of Ministers, till Parliament enacts a law fixing the criteria for selection, conditions of service and tenure.

Pointing to the Article calling upon Parliament to make a law regarding the criteria for selection, conditions for service and tenure of the CEC and ECs, the bench said that successive governments have not paid heed, thereby leaving a vacuum.

The “vacuum in the case of Article 324 (2) is the absence of the law which Parliament was contemplated to enact,” it said.

It said “political parties undoubtedly would appear to betray a special interest in not being forthcoming with the law. The reasons are not far to seek. There is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation”.

The bench said that “as long as the party that is voted into power is concerned, there is, not unnaturally, a near insatiable quest to continue in the saddle. A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power”.

Pointing to the “unique nature of” Article 324(2), the bench said it is “concerned with the devastating effect of continuing to leave appointments in sole hands of the Executive on fundamental values, as also Fundamental Rights” and”we are of the considered view that the time is ripe for the Court to lay down norms”.

It said “criminalisation of politics, a huge surge in the influence of money power, the role of certain sections of the media where they appear to have forgotten their invaluable role and have turned unashamedly partisan, call for the unavoidable and unpostponable filling up of the vacuum. Even as it is said that justice must not only be done but seen to be done, the outpouring of demands for an impartial mode of appointment of the members require, at the least, the banishing of the impression, that the Election Commission is appointed by less than fair means”.

It said “the demand for putting in place safeguards to end the pernicious effects of the exclusive power being vested with the Executive to make appointment to the Election Commission, has been the demand of political parties across the board”.

However, “once power is assumed… the fact of the matter is that, despite the concerns of the Founding Fathers and the availability of power, successive governments have, irrespective of their colour, shied away from undertaking what again we find was considered would be done by Parliament, by the Founding Fathers”.

The bench said “the electoral scene in the country is not what it was in the years immediately following the country becoming a Republic. Criminalisation of politics, with all its attendant evils, has become a nightmarish reality. The faith of the electorate in the very process, which underlies democracy itself, stands shaken. The impact of ‘big money’ and its power to influence elections, the influence of certain sections of media, makes it also absolutely imperative that the appointment of the Election Commission, which has been declared by this Court to be the guardian of the citizenry and its Fundamental Rights, becomes a matter, which cannot be postponed further”.

It said “while this Court is neither invited, nor if it is invited, would issue a Mandamus to the Legislature to make a law, as contemplated in Article 324(2), it may not be the end of” its “duty… in the context of the provision”.

“We have already elaborated and found that core values of the Constitution, including democracy, and Rule of Law, are being undermined. It is also intricately interlinked with the transgression of Articles 14 and 19. Each time, on account of a ‘knave’, in the words of Dr. Ambedkar, or again in his words, ‘a person under the thumb of the Executive’, calls the shots in the matter of holding the elections, which constitutes the very heart of democracy, even formal democracy, which is indispensable for a Body Polity to answer the description of the word ‘democracy’, is not realised”.