Supreme Court: The 5-judge Constitution Bench of K.M. Joseph*, Ajay Rastogi**, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ has settled the dispute revolving around appointment of members of the Election Commission of India (ECI) and has held that the Chief Election Commissioner and Election Commissioners shall appointed by the President on the advice of a 3-member committee consisting of:
- the Prime Minister of India;
- the leader of opposition in Lok Sabha or in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength; and
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the Chief Justice of India
The Court made clear that this norm will continue to hold good till a law is made by Parliament.
Further, regarding the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India, the Court made a fervent appeal that the Union of India/Parliament may consider bringing in the necessary changes so that ECI becomes truly independent.
Justice Rastogi, who agreed with the majority opinion penned by Justice Hrishikesh Roy, gave the following additional suggestion in his concurring opinion:
- The grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India.
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The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.
Here is a summary of the 378-pages-long verdict:
Issue before the Court and the prayer thereof
The system for appointment of members of ECI was challenged on the ground that the existing practice of appointment is incompatible with Article 324(2) and manifestly arbitrary. Hence, an independent Election Commission was sought for a functioning democracy as it ensures Rule of Law and free and fair elections.
It was argued that there is a lacuna in the matter of appointment under Article 324 of the Constitution as out of the twelve categories of unelected Constitutional Authorities, it is only the Election Commission and the National Commission for Scheduled Castes, where qualifications and eligibility are not laid down in the Constitution or the Statute.
It was prayed that:
- A Committee of five, comprising the Prime Minister, the leader of the Opposition or of the single largest party in the Lok Sabha, the Chief Justice of India, the Speaker of the Lok Sabha and an eminent jurist selected by the first four to recommend suitable candidates, is to be appointed for appointment to the Election Commission.
- Qualifications be declared, which include citizenship of India, and that a person should have completed between 45 years and 61 years and the person should have impeccable integrity and high moral character.
- The individual must have never had affiliation either directly or indirectly to any political party.
- The person appointed must have been a Member of the IAS or the IPS or a Judge of the High Court.
- The Election Commissioners must be irremovable except after following the procedure in the first proviso.
- An independent Secretariat must be established.
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The expenditure of the Election Commission should be brought on par with those of the Supreme Court, the CAG and the UPSC. The expenditure must be made non-votable expenditure charged on the Consolidated Fund of India.
Vacuum in Article 324 of the Constitution
Only Chief Election Commissioners were appointed for the first four decades of the Republic and, thereafter, since the year 1993, the Election Commission has become a team, which consists of the Chief Election Commissioner and the two Election Commissioners. It may be true that in the sense that the President, acting on the advice of the Prime Minister, in accordance with the concerned Rules of Business, has been making appointments.
In this backdrop, the Court considered the Legislative history and the contemplation of the Founding Fathers of the Constitution of India and came to notice that there was general agreement that a law must be made by Parliament and the amended draft Article 289 came to be, accordingly, further amended and approved, leading to the insertion of the words ‘subject to the law to be made by Parliament’ in Article 324(2). While Article 124(2) dealing with appointments to the Supreme Court and Article 217(1) which deals with appointments to the High Courts, was to be made based on what was described as ‘consultations’ in these Articles, Article 324(2), does not provide for consultation with any one and it appears to place the power to make appointments, exclusively with the Executive as the President is bound by the advice of the Prime Minister. However, it is precisely to guard against the abuse by the exclusive power being vested with the Executive that instead of a consultative process being provided, Parliament was to make a law.
“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. A law could, not be one to perpetuate what is already permitted namely appointment at the absolute and sole discretion of the Executive.”
The reason for such absence of law appeared to be clear to the Court as there is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation. The Court noted,
“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.”
The Court, hence, observed that the absence of such a law does create a void or vacuum. This is despite a chorus of voices even cutting across the political divide urging divesting of the exclusive power of appointment from the Executive.
Concerned with the devastating effect of continuing to leave appointments in sole hands of the Executive on fundamental values, as also the Fundamental Rights, the Court observed that the time is ripe for the Court to lay down norms.
“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.”
Same protection to Election Commissioners as given to Chief Election Commissioner
The Court rejected this proposal after observing that if the Election Commissioner is accorded the protection available to the Chief Election Commissioner, he would be entitled to not only claim immunity from removal except on being impeached like a Judge of the Supreme Court but he would be conferred with a further protection even after the impeachment or before the impeachment starts, that the Chief Election Commissioner must also recommend the removal.
However, in the light of the fact that Election Commissioners have become part of the Election Commission, the Court observed that perhaps on the basis of the volume of work that justifies such an appointment and also the need to have a multi-Member team otherwise, it is for Parliament acting in the constituent capacity to consider whether it would be advisable to extend the protection to the Election Commissioners so as to safeguard and ensure the independence of the Election Commissioners as well.
Independent Secretariat/Charging Expenditure on the Consolidated Fund of India
Noticing that the Election Commission of India is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the Executive, the Court observed,
“One of the ways, in which, the Executive can bring an otherwise independent Body to its knees, is by starving it off or cutting off the requisite financial wherewithal and resources required for its efficient and independent functioning. It would not be unnatural if faced with the prospect of it not being supplied enough funds and facilities, a vulnerable Commission may cave in to the pressure from the Executive and, thus, it would result in an insidious but veritable conquest of an otherwise defiant and independent Commission.”
However, noting that it is a matter of policy, the Court refrained from passing any direction and made an appeal that there is an urgent need to provide for a permanent Secretariat and also to provide that the expenditure be charged on the Consolidated Fund of India and it is for the Union of India to seriously consider bringing in the much-needed changes.
Grounds for removal of Election Commissioners
Justice Rastogi, in his concurring opinion, stressed that in order to allow independence in the functioning of the Election Commission as a Constitutional body, the office of Chief Election Commissioners as well as the Election Commissioners have to be insulated from the executive interference.
It is to be noted that there are two procedural safeguards available regarding the removal of the CEC:
(i) shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court;
(ii) the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.
However, second proviso to Article 324(5) postulates that the removal of the Election Commissioners could be made only on the recommendation of the Chief Election Commissioner.
This means that the protection available to the Chief Election Commissioners is not available to other Election Commissioners. Various reports have recommended that the protection against removal available to the Chief Election Commissioner should be made available to the other Election Commissioners to ensure the independence of the Election Commission.
Hence, keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold free and fair election which is a sine qua non for upholding the democracy as enshrined in our Constitution, Justice Rastogi observed that it was imperative to extend the protection available to the Chief Election Commissioner under the first proviso to Article 324(5) to other Election Commissioners as well until any law is being framed by the Parliament.
[Anoop Baranwal v. Union of India, 2023 SCC OnLine SC 216, decided on 02.03.2023]
*Judgment authored by: Justice KM Joseph
**Concurring Opinion by: Justice Ajay Rastogi
Advocates who appeared in this case :
For Petitioners: Senior Advocate Gopal Sankaranarayanan, Advocates Prashant Bhushan, Jaya Thakur, Kaleeswaram Raj;
For UOI: AGI R. Venkataramani, SG Tushar Mehta and Addition SG Balbir Singh