New Delhi: The Supreme Court on Tuesday observed that a committee which includes the Chief Justice of India might ensure the most transparent way of selecting election commissioners while hearing a batch of petitions to reform the appointment of members to the Election Commission of India.
According to LiveLaw, Justice K.M. Joseph – who is heading the five-judge constitution bench hearing the pleas – remarked, “You see apart from competence, what is important is you need someone with character, who does not allow himself to be bulldozed. So the point is who will appoint this person?”
The “least intrusive” system, he said, would be one that has the Chief Justice as part of the appointment committee. “We feel that his very presence will be a message that no mess up will happen. We need the best man. And there shouldn’t be any disagreement on that. Even judges have prejudices. But, at least you can expect that there will be neutrality,” he said.
In the last hearing on November 17, the bench had commenced hearing on the batch of petitions and contemplated how it would get someone who is above politics to constitute an independent body to choose election commissioners.
The Union government had during that hearing vehemently opposed a batch of pleas seeking a collegium-like system for the selection of CECs and ECs, contending that any such attempt will amount to amending the constitution.
The Supreme Court had on October 23, 2018, referred a PIL seeking a collegium-like system for the selection of CECs and ECs to a five-judge Constitution bench for authoritative adjudication. According to LiveLaw, the court had said at the time that “a close look and interpretation of the provisions of Article 324” of the constitution – which states superintendence, direction and control of elections to be vested in the Election Commission – may be required.
According to LiveLaw, attorney general R. Venkatramani, appearing for the Union government, raised the powers of constitutional courts in India and their inherent limitations based on the principle of separation of powers. But Justice Joseph interrupted the AG and said that the bench wanted to point out two aspects to him before proceeding with his submissions.
The first, he said, was that from 2007, chief election commissioners (CECs) have had very short tenures. “Around 2 years and many even less than that. The question is this. Under the 1991 Act the term of CEC used to be 6 years. However, the proviso said that if he attains 65 years of age, he would retire before the completion of that period. So, what the government has been doing is that because it knows the DOB, it ensures that one who is appointed does not get his full 6 years. So, the independence gets thwarted here,” he said.
The court pointed out that since 2004, no CEC has completed the six-year tenure and during the 10-year rule of the UPA government, there were six CECs and in the eight years of the NDA government, there have been eight CECs.
The second aspect, Justice Joseph said is that in neighbouring countries like Sri Lanka, Nepal, Bangladesh and Pakistan, there are “stringent safeguards” with which election commissioners are appointed.
According to LiveLaw, Justice Joseph said, “We wanted to point this out before you because there is no law here. Silences of the constitution is being exploited by all. They (the Executive) have used it to their interest.”
The court also observed that the constitution has vested enormous powers on the “fragile shoulders” of the CEC and the two election commissioners and a strong character like T.N. Seshan should become the CEC. Seshan was a former cabinet secretary to the Union government and was appointed as the election commissioner on December 12, 1990 with a tenure till December 11, 1996. During his six-year tenure, he is credited with overseeing game-changing electoral reforms. He died on November 10, 2019.
A constitution bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, said its endeavour is to put a system in place so that the “best man” is selected as the CEC.
“There have been numerous CECs and T.N. Seshan happens once in a while. We do not want anyone to bulldoze him. Enormous power has been vested on the fragile shoulder of three men (two ECs and the CEC). We have to find the best man for the post of CEC. The question is how do we find that best man and how to appoint that best man,” the bench said.
Venkataramani said nobody can have any objection to it and in his view, even the government is not going to oppose the appointment of the best man, but the question is how can it be done.
“There is no vacuum in the constitution. Election commissioners are presently appointed by the president on the aid and advice of the council of ministers. When there were no enactments, the Vineet Narain and Vishaka judgments (that laid down guidelines for dealing with sexual harassment at the workplace) happened but in this case, there is no such vacuum,” he said, adding that the court has to look at the issue from this perspective.
The bench said since 1990, voices have been raised from various quarters and once, veteran Bharatiya Janata Party (BJP) leader L.K. Advani had written for a collegium-like system for constitutional bodies, including election commissioners.
“Democracy is a basic structure of the constitution. There is no debate about that. We also cannot tell Parliament to do something and we will not do that. We just want to do something to the issue that has been raised since 1990. The situation on the ground is alarming. We know that there will be opposition from the ruling party to not allow us to go past the present system,” the bench said.
It added that the court cannot say it is helpless and cannot do anything and there needs to be a system that is different from the present structure of appointment of ECs and CECs.
The court flagged Article 324 of the constitution, which talks about the appointment of election commissioners, and said it does not provide the procedure for such appointments. Moreover, the article had envisaged the enactment of a law by parliament in this regard, which has not been done in the last 72 years, leading to exploitation by the Union government, it said.
(With PTI inputs)