Be it the UPA or the current dispensation, this trend has continued, a constitution bench observed verbally. The bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar is considering a clutch of petitions seeking an independent panel to select the CEC and election commissioners.
Appearing on behalf of the petitioners, advocate Prashant Bhushan argued that Parliament had made no law to regulate the appointment of election commissioners. “Please inform us whether you have considered legislation or not. Parliament has to take a call,” the bench asked the government.
Attorney general R Venkataramani said he would take instructions from the government and answer the court’s query.
The bench pointed out that Sukumar Sen, the first CEC, served for eight years and so did his successor. The third CEC had a tenure of four years.
Justice Joseph said as per the Election Commission Act, 1991, the term of the CEC was six years. However, according to the proviso, if the person attains 65 years of age, he will retire before the completion of that period.
“So, what the government has been doing is that because it knows the date of birth, it ensures that one who is appointed does not get his full six years … so the independence gets thwarted here. How will they carry out their tasks,” Justice Joseph verbally remarked.
The bench questioned as to why CECs were not getting their full term in office. Bhushan pointed out that after the last hearing (last week), the government had “hurriedly” appointed a third election commissioner.
“Silence of the Constitution is being exploited by all. They have used it to their interest,” the bench remarked.
It pointed to Constitutional Assembly debates which said there should be a law on the Election Commission.
The AG said matters that were open for scrutiny by the court were the ones that violated fundamental rights. The court can enhance the provision, but when it comes to striking an original provision of the Constitution, that is for Parliament to debate and not the court, he argued. The AG added in situations when the law had provided Parliament the power to make a law, there was no reason to suggest that a law should certainly be made. “A vacuum cannot be imagined merely because a law is not in place. Parliament can at times be slow in its approach,” he said.
Justice Roy observed that “they say, make haste slowly. It’s been 72 years”.
The core of democracy is holding periodical elections and therefore purity and transparency are intricately connected, the bench said, and added it needed to see whether the provision required to be enhanced.
Justice Ravikumar said electoral reforms and strengthening the appointment of election commissioners were extremely important and were felt long ago, yet nothing was done. “The situation on the ground is alarming. We know that there will be opposition from the party in power to not get rid of the present structure. It is all self-serving,” Justice Joseph said.
The “least intrusive” is that there is a system where there is the presence of the Chief Justice of India in the appointment committee, the bench observed verbally. It also deliberated over the appointment of retired HC judges as election commissioners. “We want the best man. We only want to understand how to choose the best man,” the bench observed.