Propensity For Electoral Process To Be Afflicted With Vice Of Wholly Unfair Means Being Overlooked Would Spell Disastrous Consequences: SC

The Supreme Court has observed that with the accumulation of wealth and emergence of near monopolies or duopolies and the rise of certain sections in the Media, the propensity for the electoral process to be afflicted with the vice of wholly unfair means being overlooked would spell disastrous consequences.

The Court made this observation while ruling that the appointment of Chief Election Commissioner and other Election Commissioners shall be made by the President on the advice of a committee comprising the Prime Minister, leader of Opposition in Lok Sabha (or leader of largest opposition party in Lok Sabha) and the Chief Justice of India.

“With the accumulation of wealth and emergence of near monopolies or duopolies and the rise of certain sections in the Media, the propensity for the electoral process to be afflicted with the vice of wholly unfair means being overlooked by those who are the guardians of the rights of the citizenry as declared by this Court would spell disastrous consequences.”, the five-judge constitution bench headed by Justice KM Joseph and comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar noted.

Justice Ajay Rastogi, who concurred with the 289-page lead judgment authored by Justice Joseph, delivered a separate verdict with an additional conclusion.

Senior Advocate Gopal Shankarnarayanan, Advocate Prashant Bhushan appeared for the petitioners whereas Attorney General R Venkataramani, Solicitor General Tushar Mehta, and Additional Solicitor General Balbir Singh appeared for Union of India.

The Court noted that the essential hallmark of a genuine democracy is the transformation of the ‘Ruled’ into a citizenry clothed with rights which in the case of the Indian Constitution also consist of Fundamental Rights, which are also being freely exercised and the concomitant and radical change of the ruler from an ‘Emperor’ to a public servant.

“The means to gain power in a democracy must remain wholly pure and abide by the Constitution and the laws. An unrelenting abuse of the electoral process over a period of time is the surest way to the grave of the democracy.”, the Court observed.

The bench also observed that the cardinal importance of a fiercely independent, honest, competent and fair Election Commission must be tested on the anvil of the rule of law as also the grand mandate of equality. The bench added that rule of law is the very bedrock of a democratic form of governance and that it averts a democratic Government brought to power by the strength of the ballot betraying their trust and lapsing into a Government of caprice, nepotism and finally despotism.

The Court held that the Election Commission riding on the horse of independence, cannot act in an unfair manner. “Independence must be related, finally, to the question of ‘what is right and what is wrong’. A person, who is weak kneed before the powers that be, cannot be appointed as an Election Commissioner. A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy.”, the Court remarked.

The bench emphasized that the appointment must not be overshadowed by even a perception, that a ‘yes man’ will decide the fate of democracy and all that it promises. The Court also observed that Democracy is inextricably intertwined with power to the people and the ballot, is more potent than the most powerful gun.

The bench also delved into the principles of separation of powers and judicial review as part of the basic structure of the Constitution. “A court when it declares a law made by the legislature as unconstitutional, if it be that, it is within its bounds, cannot be accused of transgressing the principle of separation of powers. Declaring even a law made by the Parliament as unconstitutional forms a part of its powers.”, it said.

As regards the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India is concerned, the Court made a fervent appeal to the Union of India/Parliament to consider bringing in the necessary changes so that the Election Commission of India becomes truly independent.

The Court noted 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.

The Court observed that “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. 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.”

Cause Title- Anoop Baranwal v. Union of India  

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