New Delhi: A Constitution Bench of the Supreme Court on Thursday revamped the selection mechanism for the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (EC), ruling that a panel consisting of the Prime Minister, Leader of the Opposition (LoP) and Including the Chief Justice of India (CJI), he will be appointed until the Parliament brings a law in this regard.
In the absence of the LOP, the leader of the largest party in Parliament would be included in the collegium to appoint the CEC and EC, a bench headed by Justice KM Joseph clarified. The bench also included Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar.
Currently, the Election Commission of India (ECI) is a three-member body, consisting of a CEC and two ECs. Under Article 324(2) of the Constitution, the President is empowered to appoint the CEC and EC. This provision further stipulates that the President, who acts on the aid and advice of the Prime Minister and the Council of Ministers, shall make appointments “subject to the provisions of any law made by Parliament”.
Although no such law has been enacted till date, the CEC and ECs are appointed by the Prime Minister and the Council of Ministers under the seal of the President. The rules for such appointments are also silent on the qualification of the candidate.
Justices Joseph and Rastogi read out their separate but concurring judgments, declaring that the independence of the ECI required a collegium with the participation of the CJI. “The purity of the election process has to be maintained for the democracy to survive. Otherwise, it would have disastrous consequences,” said Justice Joseph while reading out the operative portion of his judgement.
The judge said that in order to be able to function independently, the ECI should have an independent secretariat, rule-making power as well as an independent budget.
Reading out his separate judgement, Justice Rastogi said he fully agreed with Justice Joseph, and added that the procedure for removal of the EC should be at par with that of the CEC, which can be removed only through an impeachment process – a As a judge of the Constitutional Court.
The decision comes at a time when the opposition has repeatedly questioned the independence of the Election Commission, citing its announcement of election dates and alleged negligence in taking action against leaders of the ruling party for violation of election rules. .
The Supreme Court judgment on the selection of the CEC and EC brings it at par with the appointment of the CBI chief, who is also selected through a similar composition of the collegium.
The court had on November 24 reserved its verdict after completing arguments in a batch of four public interest litigations (PILs) seeking a direction to set up a neutral and independent selection panel to recommend names to the President for appointments. Release was insisted upon. CEC and EC.
The petitions, argued by senior advocate Gopal Sankaranarayanan and advocate Prashant Bhushan, complain that despite a mandate under Article 324(2), Parliament has not enacted the law.
Hearing the matter on different dates in November, a five-judge bench questioned the central government over the lack of rules to guide the appointment of CEC and EC.
At one point, it questioned the government whether it was defeating the wishes of the Constitution’s framers by not enacting the law, adding the top court could probe the need to have a better system.
During the proceedings, the court also noted that successive governments since 1996 have “completely destroyed” the independence of the ECI by ensuring a full six-year tenure to any CEC, adding the absence of a law to appoint an EC As a result of the “dangerous trend”.
The government retorted, telling the court that the CJI’s involvement in choosing the EC cannot be the only guarantee of fairness in the selection process.
While the Constitution Bench from Thursday last week repeatedly cited examples of how the presence of the CJI can usher in fairness in a selection process when all governments want a “yes man in the selection panel”, the government through Solicitor General Tushar Mehta called it “misleading”. and the “constitutionally unacceptable” suggestion that the executive cannot make an honest choice without the aid of the judiciary.
As the arguments were about to end in the last week of November, the court asked the Center to produce the file relating to the appointment of Arun Goel as Election Commissioner on November 18, even as the bench took up the matter.
After the file was placed before it on November 24, the bench questioned the “haste” and “haste” shown by the central government in Goel’s appointment, wondering whether Union Law Minister Kiren Rijiju had zeroed in on Goel. any criteria have been followed. Pool of four officers shortlisted for selection.
The bench’s questioner closely followed Rijiju’s strong criticism of the apex court’s model of selection of judges through the collegium system.
In various instances around that time, the Law Minister remarked that the Supreme Court Collegium appoints people who know judges; The collegium system has been called “opaque”; And described the Indian selection system as the only one where judges appoint judges.
To be sure, the apex court made it clear that it would not examine the correctness of Goyal’s appointment but wanted to see how the government appoints the CEC and EC.
