If the Election Commissioner has to take action against the PM…? Supreme Court's question to the Center

If the Election Commissioner has to take action against the PM…? Supreme Court's question to the Center

The Supreme Court on Wednesday said that involving the Chief Justice of India (CJI) in the consultative process for the appointment of the Chief Election Commissioner would ensure the independence of the Election Commission. The Supreme Court said any ruling party at the Center "prefers to remain in power" and can appoint a "yes man" to the post under the current system.

The top court is hearing some petitions which have sought a collegium-like system for the appointment of Election Commissioners (EC) and Chief Election Commissioners (CEC). The Center argued that the 1991 Act has ensured that the Election Commission remains independent in terms of the salary and tenure of its members and there is no point that warrants the court's intervention. It said that the system adopted for the appointment of the Chief Election Commissioner is seniority among the Election Commissioners. During the hearing, Justice KM Joseph said that the Election Commissioner has to take any step against the Prime Minister, but if the commissioner is weak, he will not be able to take any step.

Justice Joseph said during the hearing that I am talking about PM here hypothetically just for example. The commissioner should be independent, and impartial. For this, it is necessary that his selection should be done by a much bigger body than just the cabinet. Political people have been talking, but nothing has happened at the ground level. Justice Joseph further said that if no action is taken, will it not be a case of a complete breakdown of the system? Justice Joseph said that the CJI is involved in the appointment of the CBI director. Where is the danger to democracy there? Our courts have given verdicts and they have been accepted by the executive.

Justice K. A five-judge constitution bench headed by Justice M. Joseph said that the independence of the institution has to be ensured to the extent that appointments are to be scrutinized at the entry-level. The bench comprises Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy, and Justice CT Ravikumar.

The bench said, “Every ruling political party at the Center likes to retain itself in power. Now, we want to focus on the consultative process for the appointment of the CEC and the inclusion of the Chief Justice of India in the process will ensure the independence of the commission.

Attorney General R Venkataramani, appearing for the Centre, said the Election Commission Act, of 1991 was a watershed moment under which election commissioners have ensured independence in salary and tenure. He said, “The law was passed by the Parliament after the report of the Dinesh Goswami committee. The law ensures that the commission remains independent in terms of the salary and tenure of its members which are intrinsic features of the independence of an institution.

The bench told Venkataramani that the 1991 law he was referring to only deals with conditions of service, which is clear from its name itself. The bench said, “Suppose the government appoints a person who says yes, who is of its ideology. The law provides him with all leeway in tenure and salary, but there is no so-called freedom in the institution. This is an election commission, where independence should be ensured at the starting point.

Venkataramani said that freedom and salary have different aspects and fixed tenure is one of them. He said, “The Election Commission remains independent in the matter of salary and tenure of its members and there is no point which warrants the intervention of the court. The system adopted at present is that the senior-most Election Commissioner is appointed as the Chief Election Commissioner (CEC).

The Supreme Court on Tuesday termed as "troublesome" the practice of taking advantage of the absence of any law for the appointment of Election Commissioners and Chief Election Commissioners. The court raised the issue of Article 324 of the Constitution which deals with the appointment of Election Commissioners. The court had said that it did not provide the procedure for such appointments.

The court had said that moreover, it envisaged enactment of a law by the Parliament in this regard, which has not been done in the last 72 years, due to which the Center has been taking advantage of it. The court had noted that no Chief Election Commissioner has completed a six-year term since 2004 and the United Progressive Alliance (UPA) government had six Chief Election Commissioners during its 10-year rule, while the National Democratic Alliance (NDA) government had eight. There have been eight Chief Election Commissioners over the years.

(with language input)