New Delhi: A constitution bench in the Supreme Court will on Thursday deliver its ruling on a clutch of petitions demanding an independent selection mechanism to appoint the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
The bench, comprising justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar, had on November 24 reserved its verdict after wrapping up the arguments in a batch of four public interest litigations (PILs) that have pressed for issuance of directives for setting up a neutral and independent selection panel for recommending names to the President for appointments as CEC and ECs.
According to the Supreme Court website, justices Jospeh and Rastogi will be delivering two separate judgments.
The petitions, argued by senior counsel Gopal Sankaranarayanan and advocate Prashant Bhushan, complained that Parliament has not framed a legislation despite a mandate under Article 324(2).
At present, ECI is a three-member body, with a CEC and two ECs. Under Article 324(2) of the Constitution, the President is empowered to appoint the CEC and ECs. This provision further stipulates that the President, who acts on the aid and advice of the Prime Minister and the council of ministers, will make the appointments “subject to the provisions of any law made in that behalf by Parliament”.
However, with no such law having been framed till date, CEC and ECs are appointed by the Prime Minister and the council of ministers under the seal of the President. The rules for such appointments are also silent on the qualification of a candidate.
While hearing the matter on different dated in November, the five-judge bench had constantly grilled the Union government over the lack of regulations to guide appointment of CEC and ECs. At one point, it questioned the government if it was not defeating the wishes of the framers of the Constitution by not framing a law, adding the apex court could examine the necessity of having a better system.
During the proceedings, the court had also lamented that successive governments have “completely destroyed” the independence of ECI by ensuring no CEC gets the full six-year term since 1996, adding the absence of a law for appointment of ECs has resulted in an “alarming trend”.
The government, on its part, also retorted when it told the Supreme Court that the participation of the Chief Justice of India (CJI) in picking ECs cannot be the only guarantee of fairness in the selection process.
While the constitution bench repeatedly illustrated since Thursday last week as to how CJI’s presence can usher in impartiality to a selection process at a time when all governments want “Yes men” in the ECI, the government, through solicitor general Tushar Mehta, called it a “fallacious” and “constitutionally impermissible” suggestion that the executive cannot make an honest selection without the help of the judiciary.
Towards the conclusion of the proceedings, the court asked the Centre to produce the file related to the appointment of Arun Goel as an election commissioner on November 18, even as the bench was seized of the matter.
After the file was produced before it on November 24, the bench questioned the “tearing hurry” and “haste” shown by the Centre in appointing Goel, wondering if Union law minister Kiren Rijiju followed any yardstick to zero in on Goel from the pool of four officers picked for the selection.
The bench’s poser had closely followed Rijiju’s strong criticism of the apex court’s model of selecting judges through the collegium system. At various instances around that time, the law minister commented that the Supreme Court collegium appoints people who are known to the judges; called the collegium system “opaque”; and described the Indian selection system as the only one where judges appoint judges.
To be sure, the top bench has clarified that it will not scrutinise the correctness of Goel’s appointment but wished to see how the government appoints CEC and ECs.