The court said the high-powered committee would continue to advise the President on the appointment until Parliament enacts a law on the appointment process of Election Commissioners. CECs and Election Commissioners have so far been appointed by the President on the advice of the Prime Minister.
The judgment came on petitions filed through advocates Prashant Bhushan, Kaleeswaram Raj, Ashwini Upadhyay and senior advocate Gopal Sankaranarayan for an accountable and transparent appointment process. The judgment has now brought the appointment process of CECs and Election Commissioners on a par with that of the CBI Director.
Justice K.M. Joseph, who authored the lead judgment for the five-member Bench, said the EC requires “honest, independent” Commissioners who could distinguish right from wrong, those who can “ordinarily and unrelentingly take on the high and mighty and persevere in the righteous path”. In a separate opinion, Justice Ajay Rastogi added that the procedural safeguards in place for effecting the removal of a CEC should be extended to the Election Commissioners under the first proviso to Article 324(5) of the Constitution. A CEC, like Supreme Court judges, can be removed from office only by way of impeachment. However, no such protection of tenure is available to the Election Commissioners.
In his judgment, Justice Joseph said that in a substantive democracy, the power to vote is “more potent than the most powerful gun”. People depend on an honest Election Commissioner, blessed with extraordinary powers, to guard the purity of the electoral process. “…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 one who appointed him, fails the nation. Such a person cannot have a place in the conduct of elections which forms the foundation of democracy...,” Justice Joseph wrote.
“…There is a crucial link between the independence of the Election Commission and the pursuit of power by parties, their consolidation and perpetuation… An insatiable quest to continue in the saddle requires a pliable Election Commission who functions as an unfair and biased overseer of the electoral process which lies at the very heart of democracy…,” Justice Joseph observed.
The court further made a “fervent appeal” to Parliament and the Union government to set up a permanent secretariat which draws its expenses directly from the Consolidated Fund of India and not the government. “One of the ways the Executive can bring the EC to its knees is by starving it off requisite finances much needed for its independent functioning… A vulnerable Commission, faced with the prospects of lack of funds, may kneel to the pressure of the Executive...,” Justice Joseph said.
