SC: President to appoint CEC, ECs on advise of committee comprising PM, LoP, CJI

New Delhi: In a landmark verdict aimed at insulating the appointment of Chief Election Commissioner and election commissioners from the executive's interference, the Supreme Court on Thursday ruled that their appointments will be done by the President on the advise of a committee comprising the prime minister, leader of opposition in the Lok Sabha and the Chief Justice of India.

A five-judge constitution bench headed by Justice KM Joseph, in a unanimous verdict, held that this norm will continue to hold good till a law on the issue is made by Parliament.

The apex court said if the leader of opposition in the Lok Sabha is not there, then leader of the single largest opposition party will be in the committee to appoint the Chief Election Commissioner and elections commissioners.

The bench delivered its verdict on a batch of pleas seeking a collegium-like system for the appointment of election commissioners and the Chief Election Commissioner.

The bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, stressed on purity in the election process, and said democracy is intrinsically linked to the will of people.

Justice Rastogi, who concurred with the lead judgement authored by Justice Joseph, delivered a separate verdict with his reasoning.

The apex court said that election in a democracy should be undoubtedly be fair and the buck stops with the Election Commission to ensure that its purity is maintained.

It said in a democracy, the purity of election must be maintained or else it would lead to disastrous consequences.

The bench said the Election Commission must act within the constitutional framework and within the law and it cannot act in an unfair manner.

It said that an Election Commission, which does not ensure free and fair role in the process, guarantees breakdown of rule of law, which is the bedrock of the democracy.

The bench said that democracy is fragile and would collapse if "lip service" is paid to rule of law.

It referred to Article 324 of the Constitution which deals with the appointment of members of Election Commission and said that Parliament has not passed any law in this regard as required by the Constitution.

Article 324 (2) says the Election Commission consist of the Chief Election Commissioner and election commissioners, if any, as the President may from time to time fix and their appointments shall, subject to the provisions of any law made in that behalf by parliament, be made by the President.

The apex court had reserved its judgement on the issue on November 24 last year.

During the hearing in the matter, the top court had questioned the "haste" and "tearing hurry" with which the Centre had appointed ex-bureaucrat Arun Goel as an Election Commissioner, saying his file travelled at "lightning speed" within departments in 24 hours.

The central government had vehemently resisted the observations, with Attorney General R Venkataramani contending that the whole issue pertaining to his appointment needed to be looked at in entirety.

The apex court had asked how the Union law minister shortlisted a panel of four names that was recommended to the prime minister for appointment as election commissioner when none of them would have completed the stipulated six-year tenure in office.

It had perused the Centre's original file on Goel's appointment, and said, "What kind of evaluation is this? Although, we are not questioning the merits of Arun Goel's credentials but the process."

As the bench questioned the "lightning speed" with which Goel was appointed as an EC, Venkataramani, the government's law officer, had urged the bench not to make observations without looking into the entire issue of the appointment process.

Under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, an EC can have a tenure of six years or up to the age of 65, whichever is earlier.

Goel's appointment as an EC came under scrutiny by the top court which had sought from the Centre the original records pertaining to his appointment for perusal, saying it wanted to know whether there was any "hanky panky".

The top court, which had rejected the Centre's objections to its order for producing the original file, had said it wanted to know whether everything was "hunky dory" in the appointment process as claimed by the government.

On November 19, Goel, a Punjab cadre IAS officer, was appointed as election commissioner.

Goel would be in line to be the next CEC after incumbent Rajiv Kumar demits office in February 2025. His total tenure in the Election Commission would be of over five years.

He will join Kumar and Election Commissioner Anup Chandra Pandey on the poll panel.

There was a vacancy in the Election Commission (EC) following the retirement of previous CEC Sushil Chandra in May.

Goel was the secretary in the Ministry of Heavy Industries and his voluntary retirement came into effect on November 18 last year. He has also served in the Union culture ministry.