SC notice to Centre on poll panel appointments

The petition seeks the creation of an independent selection committee for future appointments of the chief election commissioner (CEC)

Supreme Court.: File photo

R. Balaji   |   TT  |  New Delhi   |   06.09.22 : The Supreme Court on Monday issued a notice to the Centre on a petition that argues the Union government’s practice of unilaterally appointing the chief election commissioner and other election commissioners is unconstitutional and undermines the independence of the poll panel and neutrality of the election process.The two-judge bench of Justices Ajay Rastogi and V. Nagarathna assured advocate Prashant Bhushan, appearing for the petitioner, the Association for Democratic Reforms (ADR), that the matter would be examined by a larger bench for an authoritative pronouncement.Apart from challenging the constitutionality of the present appointment process that panders to “the whims and fancies of the executive”, the petition seeks the creation of an independent collegium or selection committee for future appointments of the chief election commissioner (CEC) and the two other election commissioners (ECs).

Unlike, for instance, the appointments of the CBI director or Lokpal, where the leader of the Opposition and the judiciary have a say, the Centre unilaterally appoints the members of the Election Commission.This, ADR’s public interest petition argues, violates Articles 14 (right to equality) and 324(2) as well as the basic features of the Constitution.According to Article 324(2): “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.”The petition asserts that Article 324(2) mandates Parliament to enact a just, fair and reasonable law relating to the appointment of the CEC and ECs, and regrets that this has not been done.

“Presently, the appointment of chief election commissioner and election commissioner is done solely by the executive. The impugned practice is incompatible with Article 324(2) and is manifestly arbitrary,” it says.

The petition refers to a speech by B.R. Ambedkar that expressed the hope that the government would take the initiative to enact a just, fair and reasonable law for the appointment of the members of the Election Commission to ensure its independence and integrity.“Democracy is a facet of the basic structure of the Constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the Election Commission should be insulated from political and/ or executive interference,” the petition says.“However, the appointment of members of the Election Commission on the whims and fancies of the executive violates the very foundation on which it was created, thus making the commission a branch of the executive.”

The petition adds that the Election Commission is not only responsible for conducting free and fair elections but also plays a quasi-judicial role between the various political parties, including the ruling party.“In such circumstances the executive cannot be the sole participant in the appointment of members of the Election Commission as it gives unfettered discretion to the ruling party to choose someone whose loyalty to it is ensured and thereby renders the selection process vulnerable to manipulation,” the petition says.“Thus, the aforesaid practice violates Article 14 of the Constitution of India and is incompatible with free and fair elections.” The petition says several past commissions and committees too had recommended a “neutral and independent” selection panel for the appointment of Election Commission members.It has cited the Law Commission report of March 2015, the Second Administrative Reform Commission’s report of January 2007, the Dinesh Goswami Committee report of May 1990 and the Justice Tarkunde Committee report of 1975.