Saying that a Chief Election Commissioner should be someone “with character” who “does not allow himself to be bulldozed”, and a person like former CEC, the late T N Seshan, “happens once in a while”, the Supreme Court on Tuesday mooted the idea of including the Chief Justice of India in the appointment committee to ensure “neutrality”.
Hearing petitions seeking reforms in the system of appointing the election commissioners, a five-judge Constitution bench comprising Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, said the Constitution has vested vast powers on the “fragile shoulders” of the CEC and the two election commissioners.
“Apart from competence, what is important is that you need someone with character, someone who does not allow himself to be bulldozed. So the question is who will appoint this person? The least intrusive will be a system when there is a presence of the Chief Justice in the appointment committee. We feel 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,” said Justice Joseph.
“There have been numerous CECs and T N Seshan happens once in a while,” said the bench. Seshan, former cabinet secretary, was appointed to the poll panel on December 12, 1990 with a tenure till December 11, 1996. He died on November 10, 2019.
The SC said that although the CEC’s tenure is six years under ‘The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991’, no CEC has completed his tenure since 2004. It pointed out provisions which state that if the CEC attains 65 years of age, he will retire before the completion of the six-year tenure.
“So, what the government has been doing is that because it knows the date of birth, it ensures that the one who is appointed does not get his full six years. So, the independence gets thwarted. This trend has continued,” said the bench.
The court said Article 324 of the Constitution, dealing with the appointment of election commissioners, had envisaged the enactment of a law to provide for the procedure for such appointments, but the government had not done this yet. In the absence of a law, the “silence of the Constitution is being exploited by all”, said the court.
Attorney General for India R Venkataramani, however, said “there is no vacuum in the Constitution” on the issue. “Presently, election commissioners are appointed by the President, on the aid and advice of the council of ministers,” he said, and added that the court must see the issue from this perspective.
Reminding the bench about the separation of powers, he said: “One set principle is that the original feature of the Constitution cannot be challenged. Matters that are open for scrutiny by this court are ones that violate fundamental rights. The court can enhance the provision, but when it comes to striking an original provision of the Constitution, that is for Parliament to debate and not the court.”
He said there were several proposals before the Constituent Assembly, but it did not follow any. “If the Assembly had proposals before it and did not consider them, then should it be considered by this court,” he asked, adding, “so if the Constitution takes a certain view despite several proposals before the original Constituent Assembly, then that cannot be challenged”.
Venkataramani said there are several provisions in the Constitution where the Parliament has been given the duty to contemplate a statute, and it is for the Parliament to discuss. “A vacuum cannot be imagined merely because a law is not in place,” he submitted.