The Supreme Court on Tuesday referred to the exploitation of the “silence” of the Constitution and the absence of a law governing the appointment of election commissioners and chief election commissioners as a “disturbing trend”.
According to the court, there is no procedure for the appointment of election commissioners in Article 324 of the Constitution.
Additionally, it envisaged a law being enacted by Parliament in this regard, which has not occurred for 72 years, leading to exploitation by the Centre.
Since 2004, no chief election commissioner has completed the six-year term. In the ten years of the UPA government, there were six chief election commissioners, while in the eight years of the NDA government, there have been eight chief election commissioners.
During the 10 years of the UPA government, six CECs were appointed, and eight years of the current NDA government, eight CECs have been established. Our country is experiencing a disturbing trend in this regard. The Constitution does not provide for checks and balances. The silence of the Constitution is being exploited in this manner. The law does not exist, and legally, they are correct. A collegium-like system for the appointment of the CEC could not be implemented without direction. The top court is hearing several appeals seeking a collegium-like system for the work of the CEC.
According to the bench, which also included justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, despite being the head of an institution, the CEC is unable to accomplish anything substantive because of his truncated tenure.
The majority of the chief election commissioners since 2004 have not served for more than two years. The law provides that they will hold office for six years or until they reach age 65, whichever comes first. In most cases, they were former bureaucrats known to the government for their age. Attorney General R Venkataramani, who appeared on behalf of the Centre in the issue, informed the bench that the two were appointed at such a point that their tenure was truncated.
The court may not strike down the current process under which the president appoints the CECs and ECs, according to Venkataramani.
The Constituent Assembly adopted this model, which was different from the previous models; therefore, the court cannot say that this model should be considered… This provision of the Constitution does not require interpretation,” he stated.
Even 72 years after the Constitution was adopted, there is no law on the appointment of election commissioners, which is by the Constitution.
The Constituent Assembly desired that Parliament enact a law. It has been 72 years since the Constitution was adopted, yet no law has been passed. No matter which party gains power, it will strive to remain in force, and there is nothing wrong with that. Our polity is democratic. Democracy must have periodic elections to change the government. He said purity and transparency are intricately linked and part of the basic structure.
In addition, Justice Joseph told Venkataramani that if it is a fundamental principle of the Constitution, then the court must examine it.
Dr B R Amedkar stated in the debate in the Constituent Assembly that this Article 324 provision would pose the most significant problem for the future generation. He foresaw this situation, and unfortunately, it is occurring in this court at the moment,” he stated.
There is a truncated tenure given to the ECs and CECs by the government, so they effectively do the government’s bidding. It does not matter which political party is in power. The judge emphasized that this is a fundamental right of every individual.
The court has the power to interfere if the connection between the fundamental rights of citizens and the appointment of ECs is demonstrated. Still, if the link is unclear and not severe, then the court should not intervene.
It is not possible for this court to repeat the Vishaka case (which was decided by the apex court in 1997 establishing guidelines for dealing with workplace sexual harassment) or Vineet Narain v Union of India (which concerned the appointment of the CBI director by a committee) as there is no vacuum.
While the bench agreed with the submission that the right to vote is not a fundamental right in and of itself, it has been held by the court that it is linked to other fundamental rights, such as those guaranteed under Article 19 (right to speech and expression) and others.
Venkataramani was asked by the court to explain on Wednesday any mechanisms or methods used by the government in the appointment of ECs and CECs.
On Wednesday, the hearing will continue in an inconclusive manner.
In its statement dated November 17, the Centre vehemently opposed the pleas seeking a collegium-like system for selecting CECs and ECs, contending that any such proposal would constitute a constitutional amendment.
Earlier this month, the Supreme Court had referred a PIL seeking to implement a collegium-like selection system for CECs and ECs to a five-judge Constitution bench for authoritative adjudication.