President to appoint CEC, ECs on advise of committee comprising PM, LoP, CJI: Supreme Court of India Video Credit: Gulf News

It is a landmark order by India’s Supreme Court. On Thursday, the top court’s Constitution bench unanimously ruled that Election Commissioners will now be appointed by a panel that includes the Prime Minister, the Leader of Opposition and the Chief Justice of India, making way for a more transparent process.

Currently, the Chief Election Commissioner and the two Election Commissioners are appointed by the President on the advice of the Prime Minister, which means it is a completely unilateral process that often sees bureaucrats who are favoured by the central government appointed to the job.

This is what a number of petitions had challenged in the Supreme Court leading to this historic order. The petitioners argued that the existing process was driven by the “whims and fancies of the executive”.

Buck stops with Election Commission

The five judge Constitution bench, lead by Justice KM Joseph said “elections should undoubtedly be fair and the buck stops with the Election Commission of India to ensure its purity is maintained”.

Significantly, the order also says the Election Commission will have an independent secretariat, rule-making powers, an independent budget, and equal protection from impeachment — in other words, the two Election Commissioners can only be removed through impeachment like the Chief Election Commissioner, making it harder for the government to remove them at a whim. Earlier, the Election Commission would have to take approvals from the Prime Minister’s office or the Law Ministry for any funds.

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Former Chief Election Commissioner SY Quraishi welcomed the verdict. He told Gulf News, “this is great day for the Election Commission, two of our long pending demands have finally been met”.

During the hearings, the top court had questioned the Centre on the appointment of former IAS officer Arun Goel as the new Election Commissioner at “lightning speed”, within 24 hours, asking to see the original files. Goel was appointed on Nov. 19, 2022, a day after taking voluntary retirement from his previous posting.

The order comes at a critical juncture for the election body. While it has been lauded for conducting free and fair polls in the world’s largest democracy, it has also come under increasing criticism in recent years for decisions which have appeared to favour the ruling establishment.

A case in point

Take recent examples, such as how the poll dates for Gujarat and Himachal Pradesh were announced. Even though they both eventually ended up counting votes on the same day in December last year, the Himachal polls were announced first and Gujarat several weeks later, giving the government more time to announce projects in Gujarat, which would otherwise have violated the model code of conduct.

There was also the case of Ashok Lavasa, the only Election Commissioner who had ruled that the Prime Minister had violated the Model Code of Conduct while campaigning for the 2019 general election.

He was due to take charge as the Chief Election Commissioner a few months later but suddenly resigned to join the Asian Development Bank. While opposition leaders were penalised for violating the model code in 2019, top ruling party leaders only got a rap on the knuckles.

Thursday’s order by the Supreme Court has several important observations. According to ‘Bar and Bench’, the bench said “a party in power will have an insatiable quest to remain in power through a servile Commission. The EC has to be independent, it cannot claim to be independent then act in an unfair manner.”

India’s top court ruled that, “purity of election process must be maintained to preserve democracy. Otherwise, it would lead to disastrous consequences."

Restoring the neutrality of Election Commission is therefore an important step.