Sakina Tashrifwala
Published on: 24 November 2022 at 17:16 IST
A Constitution bench in the Supreme Court lamented that successive governments have “completely destroyed” the independence of the Election Commission of India (ECI) by ensuring that no chief election commissioner (CEC) has been given the full six-year term to lead the electoral body since 1996, adding that this has led to “alarming trend.”
The five-judge panel (Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar) added that political parties of all hues had taken advantage of the Constitution’s omission regarding the selection of CECs and election commissioners (ECs), raising questions about whether those chosen would be expected to carry out the wishes of the in-power regime when the time comes.
Justice KM Joseph-led bench opined that, “It’s an extremely unsettling trend. The fall started after TN Seshan (who served as CEC for six years, from 1990 to 1996), when no one had been given a full term.”
“The government has been ensuring that anyone chosen as the CEC does not serve out his full six years because it knows the date of birth. Current has been a pattern whether during the UPA (Congress-led United Progressive Alliance) or this administration, “
Further it was added by the bench that, “This fundamentally destroys the so-called independence, which is merely lip service. Nobody can question them since there is no check, which is especially concerning given the troubling tendency we have discovered. This is one way to take use of the Constitution’s silences.”
“No regulations or checks exist. Everyone has made use of it for their own purposes. Pick someone up and give them a very brief period of time. We’re not saying anything, but it appears as though he has an obligation to carry out your instructions.”
Following the government’s criticism of the supreme court’s own method of choosing judges for constitutional courts, the top court made strong criticisms about the lack of a statute or regulations.
The Supreme Court collegium picks individuals who are familiar to the judges and regularly appear before them, according to comments made earlier this month by Union law minister Kiren Rijiju.
Rijiju has called the collegium system “opaque” on several occasions during the past month and said that the Indian selection process is the only one in which judges appoint judges.
The Union government argued on Tuesday that since the appointment procedure had been successful, there was no need for the court to get involved.
The bench then posed with the following question: “The reason why the ruling political party—regardless of colour—will not want to give up the current structure where they have complete control is because of their obstinacy and obstinate nature. They won’t want to let go of this since it serves their own interests. Every party that wins the election will want to keep it. The question is now: Should the court remain mute when the integrity and fairness of elections are connected with democracy?”
The court also stated that despite a favourable mandate under Article 324(2) and recommendations made by the Dinesh Goswami Committee in 1990 to increase the independence of the ECI, Parliament has not taken any action on formulating a law.
ECI currently has a CEC and two ECs as its three members. The President has the authority to designate the CEC and ECs in accordance with Article 324(2) of the Constitution. The President, acting with the assistance and counsel of the Prime Minister and the council of ministers, is further required under this clause to make the appointments “subject to the requirements of any law adopted in that regard by Parliament.”
The CEC and ECs are chosen by the Prime Minister and the council of ministers with the President’s seal, despite the fact that no such law has yet been enacted. The qualifications of a candidate are not specified in the rules for such appointments.
A group of four public interest lawsuits (PILs) pushed for the issue of orders to the Centre to form a selection committee that would be impartial and independent and would suggest names to the President for appointments as CEC and ECs.
The petitioners, represented by senior counsel Gopal Sankaranarayanan and advocates Prashant Bhushan and Kaleeswaram Raj, claimed that the selection panel should be absolutely impartial to ensure that the ECI is free from political and executive involvement.
Last week, petitioners suggested that the Supreme Court could order the creation of a selection panel along the lines of the Central Bureau of Investigation (CBI), which is composed of the Prime Minister, the Chief Justice of India, and the leader of the single largest party in opposition. They made this suggestion in response to criticism that the government had not passed a law despite receiving a positive mandate under Article 342(2).
According to the 1991 Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, CEC and ECs must serve a six-year term or until they are 65, whichever comes first, before stepping down from their positions. The bench once brought up the CJI’s participation in the panel that chose the CBI director during the daylong hearing on Tuesday. It said, “CJI’s very presence is a message that you can’t play games.”
Solicitor General R. Venkataramani, speaking on behalf of the Centre, attempted to persuade the court that neither has the situation evolved to the point where judicial intervention is necessary to regulate the appointment of CEC and ECs, despite what the constitutional provision claims.
He claimed that the court might only need to get involved when the selection’s irregularities are blatantly detrimental to ECI’s independence or the citizens’ fundamental rights are being violated.
However, the Constitution bench didn’t budge and emphasized that:
“You take note of the CEC and EC positions. The concept of “superintendence” suggests a storehouse of authority, power, and responsibilities that have been placed on the frail shoulders of three men. The establishment of a system is crucial. The character of a guy is crucial in any number of circumstances — “I won’t let someone bulldoze me.” I don’t give a damn whether it’s the Prime Minister or anyone else. We need somebody just like him. So, how do we appoint the man? The appointment process is vital because of this “
When postponing the case until Wednesday, the court added: “The challenge is how to choose the best. A clear system is required. Can you claim the court has no further authority if you haven’t made any progress despite having several decades to do so?”
“… We are aware that these problems cannot be solved simply, but this knowledge cannot be used as justification for not sifting through the convoluted web of rules and ethics in an effort to, if at all possible, come to the light.”
It also demanded a definite response from the AG, who would continue his arguments on Wednesday, on the existence of a procedure the government adheres to when appointing CECs or ECs. It added, “or, let us know if you constantly utilise your judgement and there is no procedure.”