Since long back, there have been demands to bring reforms in the appointment procedures of the Chief Election Commissioner (CEC) and the Election Commissioners (ECs) of India.
Finally, a five-judge Constitution bench ruled unanimously that the appointment of the CEC and ECs will be done on the advice of a committee/collegium.
Supreme Court’s Verdict (Anoop Baranwal v. Union of India) –
- The appointment of the CEC and the ECs shall be made by the President on the advice of a Committee consisting of the —
- Prime Minister,
- Leader of the Opposition of the Lok Sabha, and in case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha, and the
- Chief Justice of India
- This will be subject to any law to be made by Parliament. This means that Parliament can undo the effect of the SC verdict by bringing in a new law on the issue.
Why was this judgement necessary?
- Elections are the bedrock of democracy and the Commission’s credibility is central to democratic legitimacy.
- Article 324(2) of the Constitution had stipulated that the CEC and ECs shall be appointed by the President subject to the provisions of any law made on his behalf by Parliament.
- None of the political parties in the last seven decades framed a law for appointments to the ECI.
- This was a “lacuna” and making of law under Article 324 of the Constitution is an unavoidable necessity.
- The role of the Election Commission of India (ECI) is such that it can be abused by simply playing with the election schedule.
- The executive, being the sole arm of the state involved in the appointment, ensures that the Commission becomes/remains a partisan body and a branch of the executive.
- The concept of the power of reciprocity and loyalty to the appointing body is invoked.
- The demand for an independent system for the appointment of members of the Election Commission goes back nearly 50 years.
- It has been repeatedly recommended by —
- The Justice Tarkunde committee 1975;
- The Dinesh Goswami committee 1990;
- The second administrative reforms commission 2007, and
- The Law Commission of India in its 255th report 2015.
- Nowhere in the world does the executive unilaterally appoint an election commission without wider consultation.
Key observations made by the SC in the recent verdict –
- A person who is in a state of obligation or feels indebted to the one who appointed him deserves no place in the conduct of elections.
- It is important that the appointment must not be overshadowed by even a perception that a yes man will decide the fate of democracy and all that it promises.
- The Court makes a “fervent appeal” that the Union of India/Parliament “may consider” bringing in necessary changes –
- Putting in place a permanent secretariat for the ECI
- Charging its expenditure to the consolidated fund of India
- So that the Commission becomes truly independent.
How will the new system help?
- This new procedure will go a long way in bringing about greater credibility and impartiality to the institution.
- This will ensure that the perception of neutrality of the ECI will be maintained for the sake of public trust.
- The judgement also brings a certain uniformity in appointment procedures across institutions and statutory bodies responsible (CVC, CIC, CBI, etc) for independently maintaining democratic governance and institutional autonomy.
What the critics of the judgement say?
- Violates the concept of separation of powers —
- The SC (in the Golak Nath case 1967) held that the Constitution is supreme and all authorities function under this supreme law of the land.
- Let us remember that the apex court is empowered to judge the validity of legislation itself.
- Judicial activism —
- The Court has not acted suo motu or on a PIL or an appeal or representation on a postcard. It has adjudicated on four civil writ petitions.
- Despite having the power to issue a writ of mandamus, it has refrained from doing so.
Unresolved issues left by judgment –
- Like granting the same protection to ECs from being removed as provided by the Constitution to the CEC. The protection from removal is essential for the independence of the ECs and the protection granted to the CEC was not meant for an individual but for an institution.
- Issues like the criminalisation of politics, the role of money power and the questionable role of the media, though important, draw less attention from the judiciary.
One hopes that the remaining issues will be taken care of through comprehensive legislation, which this judgement may trigger.
Source – The Indian Express
QUESTION – Some experts have labelled the recent verdict of the Supreme Court on appointment of Election Commission as emancipatory for the credibility of the institution. Do you agree? Discuss in brief.