NEW DELHI: Taking into consideration that Election Commissioner is duty bound to act in a fair and a legal manner, the Supreme Court Constitution bench on Thursday ruled that the Election Commissioners will be appointed by the President on the advice of a high powered committee. The committee will comprise of the PM, leader of opposition in the Lok Sabha or the leader of largest opposition party and the Chief Justice of India.
A five judge bench comprising of Justice KM Jospeh, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, CT Ravikumar said that the practice will be in force till a law is made by the Parliament in this regards.
“We declare that 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 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 This norm will continue to hold good will a law is made by the Parliament. 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,” Justice KM Joseph said while reading the verdict.
The bench noted that irrespective of several political parties coming into power there was a lacuna in the law as none of them framed law for appointment of Election Commissioners and this necessitated the court to frame one under Article 324 of the Constitution.
“It is clear that A. 324 has a unique background. The founding fathers clearly contemplated a law by parliament and did not intend the executive exclusively calling the shots in the matter of appointments of Election Commission. We have noticed that while making a law is ordinarily with the legislative....and being a power it cannot be compelled by the Court...In context of A.326 making of law as contemplated was an unavoidable necessity. 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 in least banishing of the impression that the Election Commission is appointed by less than fair means,” Justice KM Joseph said.
Justice Ajay Rastogi in a separate but concurring verdict ruled that the grounds of removal of Election Commissioners should be the same as that of Chief Election Commissioner.
It becomes imperative to shield the appointment of Election Commissioners and insulating from the executive interference. It is the need of the hour and advisable, in my view, to extend the protection available to the CEC to the other ECs until any law is framed by the Parliament,” Justice Rastogi said.
Court’s order came in pleas which had sought transparent mechanism for appointment of Election Commissioner (EC) & Central Election Commissioner (CEC).
The bench had reserved verdict in the pleas last year. While reserving the verdict, it had grilled the central government over the appointment of former IAS officer Arun Goel as the Election Commissioner. Perusing the files related to Mr Goel’s appointment, the bench had noticed the lightning speed with which he was designated and remarked that the file was cleared in “haste” and “tearing hurry”. Yesterday, bench had asked the centre to submit files related to his appointment.
Stressing on the fact that the post of EC was vacant from May 15, Justice Rastogi asked AG as to what prevailed on the government to appoint Goel within a “shortest possible time” and “in a super fast mechanism.” Emphasizing on the fact Mr Goel’s name was picked up from the panel of four names which was prepared by the Law Minister, the bench further questioned the manner in which the names were selected that were recommended to the PM for his approval.
Urging the bench to not conduct a “mini trial”, AG Venkataramani told the bench that he could show a whole number of appointments made after 2015 which had taken a maximum of two to three days.” Apprising the bench of various factors which are considered while appointing ECs officials, AG said, “Batch wise seniority people are picked up. Based on database, there is short listing. They’re also guided by the term which he will serve as EC & CEC.” Senior Advocate Gopal Sankaranarayanan for the petitioners had submitted before the bench that there was no CEC who had completed a tenure of six years.