Responding to the apprehension expressed by the Constitution bench that under the present system the government would pick and appoint ‘yes men’ who may not go against it, attorney general R Venkataramani said there is no “pick and choose procedure” adopted by the government and appointments are done on the basis of the seniority of bureaucrats. He said there has not been any instance of a partisan or an unqualified person getting appointed to trigger the court’s intervention.
Facing volleys of questions from the bench of Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar on the need to have a “fair and transparent” mechanism for selection of members of the Election Commission and also on why no law has been framed to regulate their appointment as mandated under the Constitution, the trio of Venkataramani, solicitor general Tushar Mehta and additional solicitor general Balbir Singh tried to convince the court that there was no need for the judiciary to interfere as the commission has always performed independently and done remarkable works that have been recognised internationally.
When the SG submitted that the apex court can certainly examine and quash the appointment of an election commissioner if an unqualified person is chosen, the bench said that no qualification has so far been fixed for the post so there is no question of someone being unqualified for the post.
As the court on Tuesday said that short tenure of the CEC was destroying the independence of the commission, the AG had said that the cumulative tenure of a person (as an EC and CEC) should be considered and by that yardstick all enjoyed around a five-year tenure which cannot be termed as a “short period”.
The court, during the hearing, observed that there have been numerous reports on Election Commission reforms and they all said in one voice to bring change. “Nobody wants to move an extra mile to bring about that much-needed change and the court has to examine it. There is a gap,” the bench said while giving an example that if the election commissioner, picked by the government, failed to taken on the Prime Minister if a complaint is filed against him then it would lead to breakdown of the entire system.
Stating to the bench that independence of the executive is as sacrosanct as independence of the judiciary, Mehta submitted that a non-executive should not be made part of the commission’s selection process, including the Chief Justice of India as suggested by the petitioner, as it would amount to judicial overreach and violation of separation of power.
Differentiating the SC’s earlier intervention by directing that the appointment of the CBI director be done by a panel comprising the PM, leader of opposition, and the CJI, Mehta argued that the CBI director was part of the government before the judgment but the posts of ECs and the CEC are Constitutional and any change in the appointment process can be done only by the Parliament.
“It is submitted that the presumption that inclusion of a judicial member, in a process of appointment wholly vested in the office of President by the Constitution makers, would bring fairness in action towards the process, is wholly flawed. It is submitted that the appointment of the Election Commissioners was vested in the President after detailed deliberations in the Constituent Assembly and the only other form suggested for the future, in case the Parliament thought it fit, was legislative intervention of the Parliament,” the SG submitted.
He said that operationalisation of separation of powers is a two-way street. “It is submitted that judicial independence is a function of separation of powers and it creates a reciprocal obligation of judicial review functioning within strict constitutional parameters without trenching upon the executive domain… When the Constitution vests the power for appointment for any post with the President or the power to legislate with the Parliament, it does so as a reflection of democracy itself. It is submitted that to override that function or to bring in something in that process where none was envisaged, would amount to judicial overreach,” he said.
ASG Balbir Singh said the commission functioned independently and in an unbiased manner over the years and its function has been recognised internationally. He said that EC did a remarkable job in holding elections always on time and also ensured increasing participation of the voters in the electoral process.
At the end of the hearing, it was the turn of the Election Commission to put forward its views on a batch of petitions seeking to insulate it from political and executive interference but the poll panel confined its submission on financial independence, having independent secretariat and protection to the election commission as given to the CEC. Advocate Amit Sharma, in a brief submission, said the commission had sent various proposals to the Centre for reforms on those aspects which must be examined seriously.