The debate over the appointment process of India’s top poll body continued in the Supreme Court on Wednesday with the court questioning whether it would not be a “complete breakdown of the system” if the Chief Election Commissioner (CEC) does not act against the prime minister in case there are allegations against him.
A five-judge bench headed by Justice KM Joseph was hearing a batch of petitions seeking reforms in the system of appointing election commissioners.
The bench, while highlighting the need for the CEC to be “independent and a man of character”, asked Attorney General R Venkataramani, who was appearing for the centre, “Do you think the election commissioner, if he is asked to take on none less than the Prime minister, we are saying it as an example, can he say no?”.
“Suppose for example, there are some allegations against the Prime Minister and the CEC has to act but he does not act. Will it not be a case of complete breakdown of the system?” Justice Joseph further asked.
The bench, which also comprised Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, observed that there was need for an independent body of selection.
“These are aspects which you have to delve into…why we require an independent larger body for selection and not just the union council of ministers,” the bench said.
The remark came as the Centre, represented by Venkataramani, Solicitor General Tushar Mehta and Additional Solicitor General Balbir Singh, claimed the present system of appointing ECS and the CEC on the basis of seniority was doing well and the court’s interference was not warranted.
Arun Goel’s Appointment Under Scrutiny
The bench asked the Centre to furnish original records pertaining to election commissioner Arun Goel’s appointment, saying it wanted to know whether there was any “hanky panky”.
Goel, a 1985 batch IAS officer, had taken Voluntary Retirement from Service (VRS) on Friday and was appointed as EC the very next day, Advocate Prashant Bhushan, representing the petitioner, submitted.
Bhushan further told the bench that this particular post had been lying vacant since May and that he had filed an application seeking interim orders against Goel’s appointment.
Justice Joseph questioned the Attorney General on why there was such a hurried appointment when the application was pending before the bench.
“We heard the case last Thursday. At that stage, Mr. Bhushan said there is an interim application. Then the next hearing took place yesterday (Tuesday). Therefore, we would like you to produce the files relating to the appointment of this officer. So that if you are in the right, as you claim, that there is no hanky-panky, then there is nothing to fear,” he said.
Meanwhile Venkatramani objected to Goel’s appointment being brought up when the “court is considering much larger issues.”
Justice Joseph said that the court would like to know the mechanism being followed for appointment of election commissioners.
“We don’t think it is a matter where you should be withholding information. We are living in an open democracy”, Justice Joseph told the Attorney General.
Article 324 and ‘Silences of Constitution’
The top court’s comments came after it flagged Article 324 of the Constitution on Tuesday, which talks about the appointment of election commissioners, and said it does not provide the procedure for such appointments.
The Constitution 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 Centre, it said.
Terming the “exploitation of the silence of the Constitution” and the absence of a law governing the appointments a “disturbing trend”, it pointed out that since 2004, no CEC had completed the six-year tenure.
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, it further noted.
Venkataramani, however, insisted the current system does not require a change as petitioners have not provided any instance where it can be said that the commission has not acted in a free and fair manner.
“The mechanism (of appointment by the government) is so robust that no one can go rogue except for stray incidents. These stray incidents cannot be a ground for the court to interfere. To safeguard the position is our endeavor,” he said.
On November 17, the Centre had 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 bench said it is nowhere suggesting that the system is not correct but there is the need for a transparent mechanism to which Venkataramani said merely the likelihood or apprehension of any wrongdoing does not call for the interference of the court.
The Election Commission of India, despite not being a party in any of the petitions, also intervened, saying any change in the existing system will amount to amending the constitution.
(With PTI inputs)
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