Supreme Court says 'purity of election' is must for democracy

New Delhi: In a far-reaching verdict, the Supreme Court Thursday ruled that the appointment of the Chief Election Commissioner and ECs will be done by the President on the recommendation of a committee, comprising the Prime Minister, Leader of the Opposition in the Lok Sabha and the CJI, to maintain the "purity of election".

A five-judge constitution bench headed by Justice KM Joseph, in a unanimous verdict, also said the "unrelenting abuse" of the electoral process over a period of time is the "surest way to the grave of democracy".

In a democracy, the "purity of election" must be maintained or else it would lead to "disastrous consequences", the bench said.  The direction on the EC appointments will continue to hold good till a law on the issue is made by Parliament, it added.

As of now, Chief Election Commissioner and ECs are appointed in terms of Article 324 of the Constitution by the President on the recommendation of the Centre.

The apex court said if the leader of the opposition in the Lok Sabha is not there, then the leader of the single largest opposition party will be in the committee to select the CEC and ECs.

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.

"We declare that as far as the appointment to the post of CEC and the ECs are concerned, the same shall be done by the President of India on the basis of the advise tendered by a committee consisting of the Prime Minister of India, the leader of the opposition in the Lok Sabha and in case there is no such leader, the leader of the largest party in the opposition in the Lok Sabha having the largest numerical strength and the Chief Justice of India," Justice Joseph said while reading out the operative part of the judgement.

"This norm will continue to hold good till a law is made by the Parliament," said the bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar.

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

"The unrelenting abuse of the electoral process over a period of time is the surest way to the grave of democracy," the bench said, adding that the means to gain power in a democracy must remain pure and abide by the Constitution and the laws.  Democracy is intrinsically linked to the will of people, the bench said.

"Democracy can succeed only when all the stakeholders uncompromisingly work at it and the most important aspect of democracy is the very cautious electoral process, purity of which alone reflect the will of the people," it said.

The top court said undoubtedly, the Election Commission is duty-bound to act fairly and legally and must abide by the provisions of the Constitution.

"The fate of the political parties and its candidates and therefore of democracy itself to a great measure is allowed to rest in the hands of the Election commission. While there may be officers who assist the commission, vitally important decisions have to be taken by those who are at the helm of affairs," it said.

  "It is the CEC and the ECs at whose table the buck must stop," the bench said.

The apex court said there cannot be any doubt that the poll panel needs to perform the enviable task of remaining aloof from all forms of subjugation by interference from the executive.  It said that an Election Commission of India, which does not ensure a free and fair role in the process, guarantees the breakdown of rule of law, which is the bedrock of 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 the 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 consisting 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 on 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 about his appointment needed to be looked at in entirety.

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

On November 19 last year, Goel, a Punjab cadre IAS officer, was appointed as election commissioner at the time when a hearing in the matter before the apex court was underway.

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 over five years.  One of the two election commissioners, Anup Chandra Pandey, who had assumed charge on June 9, 2021, will retire on February 14 next year.