Election Commissioner Appointment Panel, Media's Role: Takeaways from SC Order

The apex court was of the firm view that the election commission must remain “aloof” from subjugation by executive.

(Photo: Altered by The Quint)

A constitution bench of the Supreme Court on Thursday, 2 March, declared that the appointment of members of the Election Commission of India should be carried out on the advice of a panel consisting of the Prime Minister of India, Chief Justice of India and Leader of Opposition — or in it’s absence, the leader of the single largest opposition party — in the Lok Sabha.

This decision by the apex court is being hailed by several legal experts and political leaders as a win for the democracy.

Even SY Qureshi, former election commissioner of India tweeted an opinion in favour of the decision. 

But ICYMI, Here's What’s Been Happening So Far...

Article 324 of the Constitution vests the Election Commission with “superintendence, direction and control of elections.” It further says:

“The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

In their order passed on Thursday, the apex court cautioned that:

But so far the central government has had a free say in the appointment of top EC officials. This is because the President made the appointments on the advice of the Union Council of ministers, which is helmed by the Prime Minister of the country.

So What Was the SC Order All About?

If one were to cull out at least some of the key highlights of the apex court’s judgment (authored by Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar) from Thursday, they would be:

• Setting up of committee for appointments

• Appeal to Union Govt for EC to have a permanent secretariat and a consolidated fund

• Questioning Arun Goel’s appointment as Election Commissioner

• Lamenting the role of media

Committee of PM, Leader of Opposition and CJI to Appoint Election Commissioners

Arriving at this decision, the apex court observed that “a vulnerable Election Commission would result in an insidious situation."

But note: this practice will remain only in place until a law is made in this regard by the parliament, as pointed out by Justice KM Joseph, in his judgment.

The apex court was of the firm view that the election commission must remain “aloof” from subjugation by the executive. This order emanated from the concern that power often becomes the end goal for political parties and thus a party in power might seek a “servile commission” to ensure that it remains that way.

In fact, Justice Ajay Rastogi, in his concurring opinion, went on to add that it would be desirable if the grounds of removal of election commissioners are  the same as that of the Chief Election Commissioner, so as to keep executive interference at the minimum.

Further, the bench added:

EC Needs Permanent Secretariat, Consolidated Fund: SC

The apex court also requested the Union of India to create provisions for a permanent secretariat and a consolidated fund for the commission’s expenditure.

Note: This is not a direction, but a “fervent appeal” to “seriously consider bringing in the much-needed changes.”
The court made this appeal for the sake of independence of the poll body, but did not pass a direction as it pertains to a matter of government policy.

On Arun Goel’s Appointment

The apex court had verbally noted the ‘lightening speed’ at which Arun Goel’s appointment as Election Commissioner was carried out, and said in its order that it has led to “certain pertinent questions”. The reasons for this include:

• Prior to reserving the judgment, the court had asked the Attorney General to produce relevant files, through which it gleaned that the Central Government knew at the time of the appointment that a related matter was pending adjudication

• Goel was slated to retire as an IAS officer in December. In November he sought voluntary retirement and on the same day the Prime Minister recommended his name for appointment.

Note: the bench did say, however, that their observations are not on the suitability of Arun Goel, and that he had excellent academic qualifications, but “as we have noted academic excellence which members of the civil service may possess cannot be a substitute for values such as independence and freedom from bias from political affiliation.”

SC Laments ‘Unashamedly Partisan’ Media

The apex court expressed its disapproval of certain sections of the media that have turned “unashamedly partisan”, as they further emphasised on the pressing need for the appointment of a free and fair election commission.

Noting that “the electoral scene in the country is not what it was in the years immediately following the country becoming a Republic,” the apex court added:

This is not the first time in the past few months that the apex court has taken a critical view of the role played by certain sections of the media in endangering democracy. In January, this year the apex court had spoken strongly against TV channels sensationalising news and “serving an agenda.”