SC Rules In Favour Of Panel For Appointing Election Commissioners — And Brings NJAC Back In Focus

The Supreme Court ruled today (2 March) that the appointment of election commissioners should be done on the advice of a committee comprising of the Prime Minister, Chief Justice of India and Leader of the Opposition in the Lok Sabha.

This is an interim arrangement which would work till the central government comes up with a law on appointments.

 “This law will continue to hold good until a law is made by Parliament. The Court asks the government to make a necessary change with regard to funding of the Election Commission from the Consolidated Fund of India and the need for separate Secretariat,” said the Constitution Bench of the Supreme Court comprising justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar. 

This decision has been given on a batch of pleas which had challenged the current system of appointment of the Election Commission of India on the ground that the executive enjoys the power to make appointments in violation of Article 324(2) of the Constitution of India.

The article states 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." 

The Supreme Court had reserved its verdict in the matter on 24 November 2022.

Importantly, on the issue of independence of the Election Commission of India, the bench said that, “an Election Commission that does not guarantee rule of law is against democracy. In its wide spectrum of powers, if exercised illegally or unconstitutionally, it has an effect on the outcomes of political parties.” 

The bench categorically stated that, “Election Commission has to be independent, it cannot claim to be independent then act in an unfair manner. A person in state of obligation to the State cannot have an independent frame of mind. An independent person will not be servile to those in power.”

The court also remarked that several decades have passed and political parties have not introduced a separate law to govern the appointments in the Election Commission.

It said that, political parties would have a reason to not seek a law, which is clear to see. A party in power will have an insatiable quest to remain in power through a servile commission.

To this, Justice Rastogi added that grounds of removal of election commissioners should be the same as that of CEC, and service conditions should not be varied.

The election commissioners have to be kept free from any executive interference.

The bench observed that political parties in power at the Centre force CEC to do their bidding so as to remain in power, thereby compromising the independence of the Election Commission.

This ruling of the Supreme Court naturally brings the National Judicial Appointments Commission (NJAC) back in the headlines.

The NJAC was envisaged as a body to appoint the judges to the Supreme Court and high courts, a privilege that for all practical purposes, rests today with the SC collegium.

The NJAC bill was ratified by Parliament and 16 state legislatures. Eventually though, a Supreme Court judge struck it down.