A five-judge Constitution bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, which is hearing a batch of petitions seeking its direction to insulate the poll panel from political or executive interference, said there are no “checks and balances” in the appointment process and it allows the government to appoint persons of its choice.
Pointing out that Article 324 (2) mandates framing of a law for selection and appointment of CEC/ECs but nothing had been done in the last seven decades, the bench said, “This is how the silence of the Constitution is being exploited.”
It said political parties would never be agreeable for passing law for setting up of an independent panel for appointment as it would take away the power of the government to appoint persons of their choice which may be needed to remain in office.
As attorney general R Venkataramani tried to impress upon the court not to interfere in the present system as there was no vacuum, as alleged by the petitioners, which is to be filled by the court’s pronouncement, the bench said, “We have to deal with the issue. The law has not been framed after working for more than 70 years of the Constitution… Each party which comes to power wants to retain power. So the government picks up someone and gives highly truncated period to work as CEC. This is very disturbing.”
“Each government, irrespective of colour, wants to remain in power. How do you search for the ideal and best man for EC is a trillion-dollar question… Can the Supreme Court remain a mute spectator? A fair, transparent and acceptable mechanism has to be there. We may examine various reports and recommendations. But any mechanism for the selection process has to be fair and transparent,” the bench said.
Challenging the constitutionality of the present appointment process, the petitioners contended that appointments were being done as per the whims and fancies of the executive and pleaded for creation of an independent collegium or selection committee for future appointments of CEC and two other ECs. They said unlike the appointments of the CBI director or Lokpal, where the leader of the Opposition and judiciary have a say, the Centre unilaterally appoints the members of the Election Commission.
Referring to former CEC TN Seshan, the bench said people came to know about the Commission when he took charge and took a slew of decisions to make the panel independent. “That kind of person is needed and not a political person. Character of a man is important to make independent decisions and not get influenced. We need such a person and how to get such a person is the question,” the court said.
The bench observed that involving the Chief Justice of India in the selection process of CEC/ECs would go a long way to ensure transparency as “presence of the CJI would send a message that you cannot play games in selection and best person of character would be picked. We should try to do that”.
The bench said the apex court had earlier also stepped in for appointment of the CBI director to insulate the office from political interference and now the question is how to insulate the office of CEC. At the end of hearing for the day, the bench asked the Centre to inform whether it followed any procedure or mechanism while selecting CEC/ECs.