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A five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha, and the Chief Justice of India (CJI).
In case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength will be a part of such committee.
The above verdict was given on 03 Mar’2023, prior to this the decision regarding CEC and ECs were taken by the President of India on the recommendation by the Prime Minister.
As such there was no collegium to carry out the mentioned selection.
What are the Important Points of the Supreme Court Verdict?
1.SC is of view that election must be conducted by an independent commission referring the Constituent Assembly (CA) debates
- The conscious mention of the words “subject to the provisions of any law made in that behalf by Parliament” further clarifies that CA predicted parliament making norms to govern appointment to ECI.
- While in the normal circumstances, the court cannot put hands on a purely legislative power, but in the context of the Constitution and absence of the Legislature and the void created by it make it necessary for the court to intervene.
4.On the question whether process of removal should be same for CEC and the ECs, SC stated that it cannot be same as CEC has special place and article 324 becomes inoperable without CEC.
5.SC left the question of financing the EC, Permanent secretariat and need for expenditure to be charged on Consolidated Fund of India for the government to decide.
Government Argument:
The government had argued that in the absence of such a law by parliament, the President has the constitutional power and asked the SC to exhibit Judicial restraint.
What is the Challenge?
1.As the constitution places the power to make any law on appointment of ECI in the hands of Parliament, SC ruling on this issue poses a question of demarcation of Power.
2.However, SC has stated that this ruling will be subject to any law made by parliament, which means parliament can bring a law to undo it.
3.Another view is that since there is no law made by parliament on this issue, the Court must step in to fill the “constitutional vacuum.”
The new act is proposed by this government in the Lok Sabha and it is having following features.
In the collegium proposed by the Supreme Court the CJI is there in addition to Prime Minister and Leader of Opposition or the Leader of party with highest numbers other than the ruling party.
In the law CJI is replaced by Union Cabinet Minister which in turn will make easy for ruling dispensation to supress LOP by 2:1.
To overcome this the decision must be made unanimous.
The search committee consisting of cabinet secretary and two secretary level personal is going to shortlist five candidates based on prescribed qualification and if the selection committee does not like those candidates, then they can go for another candidate over and above what is prescribed by the said committee.
Why this is so? If that level of personal (Cabinet secretary and two secretaries) have given the list based on prescribed qualification then what is the point in considering beyond that.
The system of qualification as well as selection is good since bureaucrat’s are going to be considered for the post of CEC and EC’s, they carry the experience of conducting the election throughout their career.
At present EC’s can be removed by president on the recommendation of CEC to the council of ministers and CEC is removed only by impeachment according to the constitution as is the case with Supreme Court Judge
But in the proposed law EC’s can be removed by impeachment just like CEC. This will make ECs secure enough to work freely without any government pressure.
CEC is made equivalent to cabinet secretary in place of judge of supreme court which is the present case as per the Election Commission law 1991.
Even though salary and allowances of supreme court judge and cabinet secretary is same but in terms of warrant of precedence the judge of supreme court has more say as compared to cabinet secretary.
Before the supreme court decision of Mar’2023 there is no law on how to select CEC and EC’s so this is a welcome step, it is good and appreciable that CJI is kept out as conflict of interest may arrive when the selection is challenged in an apex court, additionally CJI is not familiar with bureaucrats.
LOP knows the officer as he might have worked with them in the field so LOP should be safeguarded by making the decision unanimous in the collegium.
It is also better on the part of CJI to distant from the process and can have dispassionate look when it is challenged in an apex court.
Who else we can make part of collegium in place of Union Cabinet Minister, the vice-president, the speaker of Lok Sabha, both seems to be political person as of now.
So, unanimity amongst the three namely the Prime Minister, the Union cabinet minister and the LOP will take care of difference of views amongst them.
So, in the proposed bill two aspects can be plugged in namely the unanimity of decision amongst the three panellists of collegium and the rank of CEC to be kept equal to that of Supreme Court judge and not downgraded to Cabinet Secretary. In the present scenario as per the Election Commission Act 1991 it is equal to the judge of supreme court.
The Election Commission seems to be the last resort considering the present scenario of the country and it should work independently and freely as per the constituent assembly debates.
These pieces are being published as they have been received – they have not been edited/fact-checked by ThePrint.