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Synopsis

The Supreme Court has made a fervent appeal to the Union of India/Parliament to put in place a permanent Secretariat for the Election Commission of India.

A Constitution bench of the Top Court has also suggested charging the Commission's expenditure to the Consolidated Fund of India.

"We cannot be oblivious to the need for articulation of details in regard to the expenditure, which is a matter of policy, which we refrain from doing. We would only make an appeal on the basis that there is an urgent need to provide for a permanent Secretariat and also to provide that the expenditure be charged on the Consolidated Fund of India and it is for the Union of India to seriously consider bringing in the much-needed changes...", the Top Court has observed.

These suggestions came to be made by a Justice KM Joseph led bench while it recently held that the appointment of an Election Commissioner shall be done by the President of India on the recommendation of a committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha, and the Chief Justice of India.

It has been clarified that this committee will function till the time Parliament enacts a law in this regard.

"...as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice 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. This norm will continue to hold good till a law is made by the Parliament", the judgment tabled by the Constitution bench read.

The said committee shall also be making recommendations for the appointment of the Chief Election Commissioner.

The Constitution Bench also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar made these directions in a batch of petitions recommending reform in the process of appointment of members of the Election Commission of India.

It has been noted that the Election Commission of India is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation and interference from the Executive and one of the ways, in which, the Executive can bring an otherwise independent Body to its knees, is by starving it off or cutting off the requisite financial wherewithal and resources required for its efficient and independent functioning.

In this regard, the Top Court has observed that it would not be unnatural if faced with the prospect of it not being supplied enough funds and facilities, a vulnerable Commission may cave in to the pressure from the Executive and, thus, it would result in an insidious but veritable conquest of an otherwise defiant and independent Commission.

This is apart from the fact that cutting off the much-needed funds and resources will detract from its efficient functioning, the court has said while stressing the need for an independent Secretariat to the Election Commission of India and its expenditure being charged on the Consolidated Fund of India on the lines of the Lok Sabha/Rajya Sabha Secretariat.

Notably, the matter was referred to the Constitutional Bench after a Division Bench of the Top Court was of the view that 'a close look and interpretation of the provision of Article 324 of the Constitution of India’ which states superintendence, direction and control of elections to be vested in the Election Commission was required.

The Top Court has noted that several political parties came into power, but none framed a law for appointment in the Election Commission. Court added that this was a "lacuna" and emphasised that the Election Commission is duty-bound to act in a fair and legal manner and to abide by the provisions of the Constitution and the directions of the Court.

"Democracy is inexplicably intertwined with power to the people...Democracy facilitates the peaceful revolution in the hands of a common man if held in a free and fair manner", the bench added.

Case Title: ANOOP BARANWAL vs. UNION OF INDIA