Committee Comprising PM, LoP And CJI To Select CEC, ECs: SC
A Constitutional bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar recently directed that a committee consisting of the Prime Minister, the leader of the opposition in the parliament and the Chief Justice of India will advice on the appointment of the Election Commissioners and the appointment will be done by the President of India.
The bench said-
“We declare that as far as the appointment to the post of Chief Election Commissioners and the Election Commissioners are concerned, the same shall be done by the President of India on the advice rendered by a committee consisting of the Prime Minister of India, the leader of the opposition in the Lok Sabha and when there is not enough numerical strength for a leader of opposition, the leader of largest party in the Lok Sabha and the Chief Justice of India. This norm will continue to hold good until a law is made by the parliament.”
The bench further asked the government to make necessary changes in relation to the funding of the Election Commission and made an appeal for changes needed in the secretariat so that the ECI can be truly independent.
The court was hearing a batch of petitions challenging the current method of appointment of the members of Election Commission of India. The petitions were based on the ground that under the current system the executive has the power to make the appointments and this is in violation of Article 324 (2) of the Constitution of India.
The matter was first heard by a division bench of the Apex court which observed that a close interpretation of Article 324 is required. The matter was then referred to the Constitution bench.
Article 324(2) in The Constitution Of India -
(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.
Advocate Prashant Bhushan submitted before the court that the law commission has recommended the formation of a committee comprising of the Prime Minister, the leader of the opposition in the parliament and the Chief Justice of India and since the Prime Minsiter and the opposition leader are connected to political parties, the court can consider forming a more neutral body. The advocate gave to viable options in the matter:
Senior Advocate Mr. Gopal Sankarnarayan had suggested the formation of a three member committee for the same. He submitted before the court that the central government has never appointed anyone as the election commissioner for a full tenure of 6 years and this affects the independence of the commission.
Attorney General of India R. Venkatramani appearing on behalf of the government talked about the Montequian principles of the separation of powers and said that an original provision of the Constitution of India can only be enhanced by a court i.e. it cannot be struck down.
Making submission on the same lines as the Attorney General of India, the Solicitor General of India Tushar Mehta submitted before the court that the appointment power has been given to the executive but if the CJI will be added the process of appointment it would mean as if the constitution is being rewritten
The bench also observed that out of the names shortlisted for the Election Commissioner, the government appointed those who would retire before the tenure of 6 years. Additionally, the bench raised questions about the hasty removal of Arun Goel as the Election Commissioner a few months back. The court asked how the names were shortlisted before his appointment. The bench also sought filed related to the appointment of Arun Goel as the Election Commissioner.
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