During hearing petitions pertaining to the Election Commission, the Constitution Bench of the Supreme Court stated that the independence of the Election Commission had been totally destroyed by the country’s successive central governments.
No Chief Election Commissioner (CEC) has held office for the full six years since 1996 and every government designated a Chief Election Commissioner for a limited time, according to the court.
A five-judge constitution bench presided over by Justice KM Joseph heard the case on Tuesday.
The bench stated that political parties of all hues have taken advantage of the Constitution’s omission regarding the selection of CECs and election commissioners (ECs), raising questions about whether those chosen will be expected to carry out the wishes of the in-power regime when the time comes.
“It’s a very, very disturbing trend. After TN Seshan (who was CEC for six years between 1990 and 1996), the slide began when no person has been given a full term. What the government has been doing is that because it knows the date of birth, it ensures that anyone who is appointed as the CEC does not get his full six years… Be it the UPA (Congress-led United Progressive Alliance) government or this government, this has been a trend,” said the bench led by justice KM Joseph.
“In this way, the so-called independence, which is just lip-service, is completely destroyed… Particularly in view of the disturbing trend we have found… nobody can question them since there is no check. This is how the silences of the Constitution can be exploited. There is no law, no check. Everyone has used it to their interest… Pick up someone and give him a highly truncated tenure. He is obligated; does your bidding… we are not saying so but it looks like that,” the bench added.
The bench, which also included justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar, declared that despite a favourable mandate under Article 324(2) and recommendations made by the Dinesh Goswami Committee in 1990 to increase the independence of ECI, Parliament has not taken any action on formulating a law.
ECI currently has a CEC and two ECs as its three members. The President has the authority to designate the CEC and ECs in accordance with Article 324(2) of the Constitution. The President, acting with the assistance and counsel of the Prime Minister and the council of ministers, is further required under this clause to make the appointments “subject to the provisions of any law made in that behalf by Parliament”.
The CEC and ECs are chosen by the Prime Minister and the council of ministers with the President’s seal, despite the fact that no such law has yet been enacted. The qualifications of a candidate are not specified in the rules for such appointments.
A group of four public interest lawsuits (PILs) pushed for the issue of orders to the Centre to form a selection committee that would be impartial and independent and would suggest names to the President for appointments as CEC and ECs.
Senior counsel Gopal Sankaranarayanan and advocates Prashant Bhushan and Kaleeswaram Raj represented the petitioners, who stated that having a wholly neutral selection panel would safeguard the poll body’s independence from political and governmental interference.
Last week, petitioners suggested that the Supreme Court could order the creation of a selection panel along the lines of the Central Bureau of Investigation (CBI), which is composed of the Prime Minister, the Chief Justice of India, and the leader of the single largest party in opposition. They made this suggestion in response to criticism that the government had not passed a law despite receiving a positive mandate under Article 342(2).
The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991 mandates that CECs and ECs serve terms of office that last six years or until they reach 65, whichever comes first. The bench referred to the CJI’s participation in the committee that chose the CBI director at one point during the daylong hearing on Tuesday.(With agencies inputs.)