'Weak-kneed person can't be EC,' SC rules for panel of PM, LoP, CJI to make appointment of CEC, ECs

A five-judge bench noted that EC should remain aloof from all sorts of interference by the Executive

The Supreme Court on Thursday declared that the appointment of Chief Election Commissioner and Election Commissioners would be made by the President on advice of a panel, comprising Prime Minister, Leader of Opposition and Chief Justice of India until a law is put in place in this regard.

"We are concerned with and the devastating effect of continuing to leave appointments in sole hands of the Executive (meaning the PM) on fundamental values, as also the Fundamental Rights, we are of the considered view that the time is ripe for the court to lay down norms," a five-judge bench led by Justice K M Joseph said.

The court noted vaccum in the appointment process of the poll panel under Article 324 of the Constitution, as the Executive was entrusted exclusively with it as "a mere transient or stop gap arrangement". This was to be replaced by a law made by the Parliament taking away the exclusive power of the Executive. However, no law was passed even after seven decades, it added.

Highlighting the adverse impact of Executive appointing the CEC and ECs, the bench said, "A pliable EC, 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 further said the Model Code of Conduct, appeal to religion, being a corrupt practice and paragraph-16A of the Symbols Order, empowering the Commission to act in the face of defiance, constituted a powerful weapon in the hands of an independent and impartial Election Commission.

"Placing the exclusive power to appoint with the Executive, hardly helps," Justice Joseph wrote on behalf of the bench, while adding that an Election Commissioner is answerable to the Nation.

Focusing on the need for an independent persons at the helm in EC, the bench further said, "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."

The five-judge, also comprising Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar passed unanimous 378-page judgement on petitions filed by Anoop Baranwal, Ashwini Kumar Upadhyay, NGO Association for Democratic Reforms and Dr Jaya Thakur seeking an independent mechanism for appointment of CEC and ECs.

Justice Rastogi, however, gave his own separate reasonings.

The court pointed out 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.

“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,” the court noted.

It asked the Union government to seriously consider much needed changes to ensure a permanent Secretariat to EC and also to provide its expenditure would be charged on the Consolidated Fund of India.