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Will SC verdict ensure a more independent Election Commission?

Court directed constitution of a committee for the appointment of CEC and ECs

The Election Commission office in Delhi | Aayush Goel The Election Commission office in Delhi | Aayush Goel

In a landmark judgement, which is expected to go a long way in ensuring the independence of the Election Commission, the Supreme Court on Thursday ruled that the appointment of the chief election commissioner and election commissioners would be done by a three-member committee comprising the prime minister, the leader of opposition and the Chief Justice of India. 

The commission will have an independent secretariat, implying that it will no longer has to depend on the government of the day for funds, thus ensuring its independence.

The judgement also said that in case there was no leader of opposition as it is the case now, the leader of the party in the opposition having the largest numerical strength in Lok Sabha, will be the member along with PM and the CJI.

A five-member Constitution bench led by Justice K.M. Joseph in a unanimous judgement said that this process of selection of the CEC and ECs will continue till parliament enact a new law. The bench also comprised Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar.

The government through its counsels had opposed the court’s intervention in deciding the selection of the chief election commissioner and election commissioners saying it would mean trampling upon the rights of the executive. The attorney general in his submission had argued, “Judicial intervention in these matters would be at the expense of causing violence to the delicate separation of powers between the Legislature, the Executive and the Judiciary.”

The issue of appointment of election commissioners had been a bone of contention between the government and the opposition which had accused the poll panel of acting as an arm of the ruling party. The opposition had also alleged that the commission refused to take action against violation of model code of conducts by the ruling party leaders. 

The current round of Supreme Court judgements, including the one on Adani issue, has put the NDA government in a piquant situation as the opposition can claim minor victories. The judgements are important as they come ahead of a series of assembly elections this year and the Lok Sabha election to be held next year.

Justice K.M. Joseph, in the judgement penned by him, called for maintaining the independence of the commission. “A person, who is weak-kneed before the powers that be, cannot be appointed as an Election Commissioner. A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy. An independent person cannot be biased. 

Upholding the constitutional values, which are, in fact, a part of the Basic Structure, and which includes, democracy, the Rule of Law, the Right to Equality, secularism and the purity of elections otherwise, would, indeed, proclaim the presence of independence. Independence must embrace the ability to be firm, even as against the highest. Not unnaturally, uncompromising fearlessness will mark an independent person from those who put all they hold dear before their Karma,” he wrote.

The judges said that the country’s politics has undergone a huge change since independence. Criminalisation of politics, ‘big money', and the influence of certain sections of media impact the elections. “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.”

The judgement also addressed the question of lacuna in terms of a separate law as needed under Article 324 which governs appointment of the commission. The government said there was no vacuum and there was no need for separate law.

“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. 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…” judgment said. 

“The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission. Seven decades have passed by. Political dispensations of varying hues, which have held the reigns of power have not unnaturally introduced a law.”

The judgement argued in favour of saving the democracy through free and fair polls. “Democracy is inextricably intertwined with power to the people. The ballot is more potent than the most powerful gun. Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner. Elections can be conflated with a non- violent coup capable of unseating the most seemingly powerful governing parties, if they do not perform to fulfil the aspirations of the governed.”

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