Election Commissioner shouldn’t be a ‘yes-man’: Supreme Court

Source: The post is based on the article “Election Commissioner shouldn’t be a ‘yes-man’: Supreme Court” published in The Hindu on 24th November 2022.

What is the News?

The Supreme Court has recently said that Election Commissioners (ECs) should be a person who could take a stand even risking their life, and not a docile “yes-man” whom the government knew would do its bidding.

What is the constitutional status of Election Commissioners?

Article 324 envisaged that the Commission be led by a single CEC (Chief Election Commissioner). The President can appoint more Election Commissioners (ECs). But this is subject to any law made in that behalf by Parliament.

But no law has been enacted so far. However, the number of commissioners the EC can have is not specified. Similarly, none of the statutes lay down the procedure for the appointment of Election Commissioners (ECs).

The other commissioners do not enjoy the security of tenure and constitutional status of the CEC.

About the case

An application questioning the prolonged vacancy of election commissioner was already pending before the Constitution Bench.

Recently, a secretary in the government took voluntary retirement. Within a few days, the government appointed him as an Election Commissioner. This raised the debate on the mechanism of selecting Election Commissioners.

Further, this created a debate on the need for a “neutral and independent mechanism” for the appointment of Election Commissioners.  

What was the Supreme Court’s view on the independence of the Election Commission?

Questioned the mechanism of appointment: The court repeatedly asked the government how it had appointed an Election Commissioner when a case was pending before the court. Further, the court demanded the mechanism the government followed for making this appointment.

Independence of Executive is essential: If ECs become CECs, then there is no independent mechanism to consider persons other than ECs for the post of CEC. So, the Court questioned the independence of appointing ECs. The court also said that the independence of the executive was as sacrosanct as the independence of the judiciary.

Condemned the political parties: The court observed that “each political party in power will want to perpetuate that power. Nobody would be willing to make the changes required in the system. That is when the court steps in”.