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Mainstream, VOL 61 No 9 - 10, February 25 & March 4, 2023 [Double Issue]

SC Judgement on Appointment of Election Commissioners and Chief Election Commissioner Independent of Government Mirrors The Vision of Constituent Assembly | S N Sahu

Saturday 25 February 2023, by S N Sahu


The four judges of the Supreme Court (SC) delivered a historic judgement on 2nd March 2023 to put an end to the exclusive authority of the Government, led by Prime Minister, for appointing Election Commissioners (ECs) and Chief Election Commissioner (CEC) [1]. They ordered that till the Parliament enacts a law under Article 324(2) of the Constitution the President of India would appoint those persons as ECs and CEC only after their selection by a Committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha or the leader of the largest Opposition party of that House and Chief Justice of India. The momentous order of the SC finally announced a closure to the dominant role of the Government of the day to constitute the Election Commission of India (ECI) by selecting persons of its choice.

SC Judgement Aims at Preventing EC to become a Servile Commission

It is instructive to note that the judgement of the apex court for selecting candidates for the ECI on the basis of the above-mentioned Committee aimed at preventing the ECI to become, in the words of SC, “a servile Commission” and vitiate the purity and integrity of electoral process. The usage of the phrase “servile Commission” by SC clearly flagged the crucial point that ECI’s lack of independence could be attributed, among others, to its very constitution by employing persons solely chosen by the Government.

Apprehensions Expressed in Constituent Assembly on Independence of EC

It would be instructive to note that right from the period when the Constitution was being framed in the Constituent Assembly, the idea of an independent ECI got the wholehearted support of all most all the Members of the Assembly who participated in the discussion on article 289 in the draft Constitution concerning Election Commission. That was why in the initial stage it was thought by Dr B R Ambedkar that the provisions concerning ECI and the conduct of elections should be part of the chapter on Fundamental Rights so that freedom associated with that chapter would cover the ECI and the electoral process would be protected from the encroachment of the State. However, later it was decided that there should be separate Articles of the Constitution which should deal with the ECI and the conduct of Elections.

Parliament to make Law for Appointment of EC and CEC

A peep into the debates of the Constituent Assembly reveals that almost all members of the Assembly were agreeable to the establishment of an ECI, the function of which would be completely independent of the executive. However, the modalities for the appointment of the EC and CEC for ensuring their neutrality and impartiality were not categorically outlined in the Constitution. The only thing prescribed in Article 324(2) of the Constitution is that “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.” A plain reading of this provision makes it clear that the Parliament would make law for the appointment of EC and ECI and till such law is made the President of India would appoint them.

Ambedkar Apprehended That ECs and CEC would be under Thumb of the Executive

Ambedkar was deeply conscious of the fact that while the Constituent Assembly provided for the independence of the Election Commission it never laid down guidelines for the appointment of the ECs and CEC. Therefore, he while replying to the discussion in the Constituent Assembly on June 16, 1949, on Article 289 of the draft Constitution (the corresponding Article of the Indian Constitution is Article 324) on the issue of Election Commission, without any hesitation admitted that there is nothing “to provide against the nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioner.” He went to the extent of accepting that “there is no provision in the Constitution to prevent either a fool or knave or a person who is likely to be under the thumb of the Executive”. He proceeded further to say that, “I do want to confess that this is a very important question and it has given me a great deal of headache and I have no doubt about it that it is going to give this House a great deal of headache.”

Apprehensions of Ambedkar that unfit persons could be appointed as ECs or CEC and they would be “likely to be under the thumb of the Executive” are echoing in the momentous judgement of the Supreme Court which, among others, observed that by prescribing a Committee to select candidates for the post of Election Commissioners and Chief Election Commissioner it aims at preventing the ECI from becoming an “servile Commission”.

In other words right from the days of the Constituent Assembly till the pronouncement of the judgement by the SC, the ECI’s independence and neutrality remained under a scanner. Therefore, Ambedkar’s words that the likelihood of ECs and CEC coming under the thumb of the executive caused headaches to him and the whole Constituent Assembly assume contemporary relevance. The headache caused in 1949 continued to persist even after seventy-three years of the foundation of the Republic and the Supreme Court’s aforesaid judgement constitutes an important step to give a healing touch.

Independent Functioning of Election Commission Depends on Appointment of ECs and CEC free From Government Control

It is worthwhile to use another quote from the judgement of the Supreme Court: “Election Commission cannot claim to be independent and then act in an unfair manner. A person in the state of obligation to the state cannot have an independent frame of mind. An independent person will not be servile to those in power.” These words unequivocally indicate that the persons appointed as ECs and CEC solely by exercising the power of the Government would never function independently. It is educative to note that these words uttered by SC in 2023 mirror the letter and spirit of what was said in the Constituent Assembly by Professor Shibban Lal Saksena on June 15, 1949 while participating in the discussion on Article 289 of the draft Constitution. He apprehended by saying, “it is quite possible that some party in power who wants to win next elections may appoint a staunch party man as Chief Commissioner.” Then he very presciently said that there might not be a Prime Minister like Jawaharlal Nehru, known for independence and impartiality, and someone else with weak credentials would occupy that office and abuse his right by appointing an unworthy person as CEC, who in turn would cause havoc on the electoral process.

Certainly, India does not have a Prime Minister like Nehru who is being vilified by the present regime at the centre. Last year it was reported in the media that the CEC and CEs were summoned to attend an online meeting summoned by Prime Minister’s Office. After initial hesitation, they attend the meeting. It amounted to, in the words of Ambedkar, “ coming under the thumb of the executive”.

SC Judgement in Tune with Legislative Intent of Constituent Assembly

Therefore, the pathbreaking judgement of the SC in favour of the appointment of ECs and ECI by the selection of candidates through a Committee consisting of the Prime Minister, Leader of the Opposition of Lok Sabha and Chief Justice of India is in tune with the legislative intent of the Constituent Assembly which conjured up the vision of an ECI completely independent of the executive and function in a manner which would uphold the purity and integrity of the electoral process.

(Author: S N Sahu served as Officer on Special Duty to former President of India K R Narayanan)

[1Anoop Baranwal vs Union of India | WRIT PETITION (CIVIL) NO.104 OF 2015 | 2 March 2023 | Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar

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