On Tuesday, the Supreme Court urged the Chief Justice of India to be included on the appointment committee to ensure “neutrality” by stating that a Chief Election Commissioner should be someone “with character” who does not allow himself to be bulldozed and that someone like the late T N Seshan “happens once in a while”.
In hearing petitions seeking reform of the selection process for election commissioners, a Constitution bench comprised of Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C T Ravikumar concluded that the Constitution has vested vast powers on the “fragile shoulders” of the Central Election Commission and the two election commissioners.
In addition to competence, one must have character, someone who does not allow himself to be bulldozed. Who will appoint this individual? Having the Chief Justice in the appointment committee will be the least intrusive method. By his very presence, we feel that no mishap will occur. There is a need for the best candidate.
This should not be a subject of disagreement. The majority of judges have prejudices as well. Nevertheless, you can be assured that neutrality will prevail,” said Justice Joseph.
“There have been numerous CECs, and T N Seshan occasionally occurs,” the bench stated. Seshan, a former cabinet secretary, was appointed to the poll panel on December 12, 1990, for a term ending on December 11, 1996. The date of his death was November 10, 2019.
While the Chief Election Commissioner (CEC)’s tenure under the ‘The Chief Election Commissioner and Other Election Commissioners (Conditions Of Service) Act, 1991’ is six years, no CEC has held that position since 2004. It is pointed out in the document that if the CEC reaches 65 years of age, he will retire before the end of his six-year term.
“So, the government has been ensuring that the one appointed does not receive the full six years due to knowing the date of birth. This results in the thwarting of independence. There has been a continuation of this trend,” the bench stated.
According to the court, Article 324 of the Constitution, which deals with the appointment of election commissioners, provides for enacting a law to regulate this process. Still, the government has not yet done so. Despite the absence of a law, the court stated that “all are exploiting the silence of the Constitution”.
However, R Venkataramani, the Attorney General for India, stated that there is “no vacuum” in the Constitution regarding this issue. According to him, election commissioners are currently appointed by the president, with the assistance and advice of the council of ministers, adding that the court must take this into account when addressing the issue.
He reminded the bench of the separation of powers by saying, “One set principle is that the original features of the Constitution cannot be challenged.” Cases involving the violation of fundamental rights are subject to scrutiny by the court. As for striking an original provision of the Constitution, that is a matter for Parliament rather than the court to decide.”
According to him, the Constituent Assembly was presented with several proposals, but none of them was followed. He asked whether this court should consider the Constitution if the Assembly had submitted proposals but failed to believe them, adding, “so if the Constitution takes a certain view despite several proposals before the Constituent Assembly, then that cannot be challenged.”.
Venkataramani stated that several provisions in the Constitution give the Parliament the responsibility to contemplate legislation for the Parliament to discuss. In his opinion, the absence of a law does not constitute a vacuum.