CEC law be struck down as ‘arbitrary, severely imperiling independence of ECI’: Justice Nariman

Justice Nariman said it was further disturbing that the SC “took four years” to pass its verdict, and did not decide the question as to why the conditions to convert a state into two Union Territories were bypassed.

He said that assurance of Solicitor General (SG) Tushar Mehta that statehood will follow shortly and the election will be held next year could not bind the successor governments or the legislature. “When SC said it will not decide the said question on the basis of assurance by SG Mehta, in effect it has allowed the unconstitutional act to go forward for an indefinite time and skirted Article 356 (5) of the Constitution,” Nariman said.

Need ‘independent’ governors to get system back on rails

Referring to the Kerala Governor Arif Mohammed Khan sitting over eight bills for a period of 23 months, he also batted for Governors with “unimpeachable integrity”, who are not merely rewarded by the ruling party, to “independently” exercise discretion over giving assent to Bills and to send a report to the Centre if there is a constitutional breakdown in the state.

He said Khan, after being pulled up by the SC, assented to one of the eight Bills and made “wholesale” reference of seven bills to the President. “If there is a wholesale reference to the President, then legislative activity of the states comes to a standstill….Once the Bill lands up at the Centre’s door and Centre says no, that’s the death of the Bill. It is over,” Nariman remarked.

He also suggested that there is a need for the Supreme Court to revisit and overrule its 2019 verdict in the B K Pavithra case decided in 2019, which ‘unfortunately’ held that there was no constraint on the Governor to refer every Bill to the President. Nariman said to get the system ‘back on rails,’ only those Bills having impact on the nation or judiciary can be sent to the President.

Courts must instantly stop onslaught on media

Justice Nariman also referred to the tax raids on the BBC office after it aired a documentary on Gujarat riots earlier this year and said that “the media is our watchdog and if it is killed, then nothing remains.” The moment there is any onslaught on media, the courts must be vigilant to instantly scorch it, he added. Nariman further said that the tax raids should be termed ‘illegal and unconstitutional,’ if the court finds the independent reporting has led to the same. That is the only way you can protect the media in this country. Otherwise, you are finished.”

Speakers sleep over matters of legislators from their party, instantly decide those of opponents, separate tribunal needed

He also suggested that a permanent Tribunal headed by retired SC judge can decide the disputes pertaining to the disqualification of members of Legislative Assembly and Parliament as the Speakers very often, when there is a is a disqualification on the ground of defection of a person belonging to the ruling party, “will just sleep over the matter’ and If it is an opponent, then they disqualify them instantly.

Collegium system worst, but nothing better available, retired judges selected by lawyers should be on it

Nariman, who was part of the Supreme Court Collegium before retiring from the apex court in August 2021, said that the present system is ‘worst’ but ‘there is nothing better’ available. He suggested that for appointment of judges, there should be a collegium of retired judges which could be selected by the practicing advocates in the Supreme Court and High Courts.

Nariman spoke at the Bansari Sheth Memorial Lecture on the topic ‘the Constitution of India: Checks and Balances, at Asiatic Society in South Mumbai on Friday evening.

Free and fair elections to become chimera if appointments made as per CEC law

Justice Nariman said that the Supreme Court had decided the Chief Election Commissioner (CEC) should be appointed by a panel of Prime Minister, Leader of Opposition and the Chief Justice of India. “It was very very crucial because if Election Commissioners happen to be partisan, then there is no free and fair election and there is no democracy”.

Most unfortunately, Nariman said, the Bill to ‘subvert’ SC order, was subsequently moved in Rajya Sabha which will become an Act in no time, where CJI is substituted by a minister appointed by the Prime Minister. “If you are going to get the CEC and other election commissioners appointed in this fashion, free and fair elections are going to become a chimera. Where you have two from the executive, the PM and a minister against LoP which is 2:1 always and out goes the EC,” he remarked.

The CEC to become ‘independent,’ should be given a tenure of five years and then can be removed like an SC judge is removed through an impeachment, Nariman suggested.

“According to me, it (CEC Bill) should be struck down for the asking as an arbitrary piece of legislation, because it severely imperils the independence of the working of the election commission. I sincerely hope so. If it is not, it is fraught with the greatest danger to democracy,’ Nariman said.

SC’s judgement on abrogation of Article 370 ‘disturbing feature’

He further said that SC’s judgment upholding abrogation of Article 370 was a ‘disturbing feature’ of this year having ‘tremendous impact on federalism’ and there was a question as to why it was abrogated when there was already a President’s Rule in the state and the centre was administering it.

“You (government) needed this because you wished to bypass a very very important Article 356 (5) which essentially deals with circumstances in which there is a constitutional breakdown in the state and the centre takes over,” he said.

He said as per the said provision could be invoked with two conditions including the national emergency and election commission saying that the polls are not possible in the concerned state. None of which was obtained, Nariman said.

Nariman said that the SG Mehta “does not have authority to bind any successor governments with his assurance and we will have one from May, next year. Secondly, he has no authority whatsoever to bind the legislature and this is going to be a legislative act, he added.