New Delhi : The SC has reserved its judgement and give “five days’ time for all sides to give their brief written note not exceeding six pages limited to what is argued before the court”
Prior to that the Supreme Court, after inspecting official files on November 24, said the appointment of Arun Goel as Election Commissioner was done with “lightning speed”, the procedure taking less than 24 hours from start to finish on November 18.
A Constitution Bench led by Justice K.M. Joseph had asked Attorney General R. Venkataramani on November 23 to produce the files concerning Goel’s appointment after petitioners alleged that it was “hurriedly” done, in fact, the very next day after the court started examining the need to insulate the Election Commission of India (ECI) from political influence by setting up a “neutral and independent mechanism” for appointment of Election Commissioners.
Advocate Prashant Bhushan, for the petitioner, said that Goel was a Secretary in the government on Friday. He took voluntary retirement that day and was appointed as Election Commissioner on Saturday and took charge on Monday.
“It was done with such haste… with a tearing urgency… You did not require time to contemplate?” Justice Joseph asked the government side.
Justice Ajay Rastogi, on the five-judge Bench, said the Election Commissioner’s post was vacant from May.
“The vacancy was there from May to November 18… Now, what prevailed on the government that everything needed to be done within the shortest possible time… This superfast mechanism… We know that where there is a will there’s a way, but here the notification was brought out on the same day, the application was given the same day, it was accepted the same day and the appointment was made the same day… The file has not travelled even 24 hours! Lightning speed… What kind of evaluation was there?” Justice Rastogi asked.
Venkataramani said that he could show a whole number of appointments made after 2015 which had taken a maximum of two to three days. “Are we finding fault with quick appointments?” Venkataramani asked.
Justice Aniruddha Bose pointed out that Goel had taken voluntary retirement and was appointed Election Commissioner the very next day. “Does it happen like that?” Justice Bose asked.
Venkataramani replied that it could have been a “coincidence”.
Justice Joseph said Goel’s records show an excellent academic record, but asked whether brilliance and competency was enough of a guard against docility.
The Attorney General said ‘docility’ was subjective and depended on the lens through which the court wanted to view a person. “It is not that we find some docile person lurking there and decide to appoint him,” Venkataramani shot back.
Justice Joseph said Goel’s name was picked from a panel of four names prepared by the Law Minister. The court questioned the process by which the Law Minister had zeroed in on these four names from the entire database of the Department of Personnel and Training.
The court pointed out that the law required both the Chief Election Commissioner (CEC) and the two Election Commissioners (ECs) to have separate six-year tenures. The court said the government has reduced the scope of candidates to just bureaucrats and moreover ensured that neither the CEC nor the ECs serve their full term. The government said Election Commissioners were “elevated” as CECs.
“A CEC is a person to be appointed in his own right. You have made it into a promotion source. You are supposed to appoint a person directly as CEC. You have made ECs a feeder category. The Founding Fathers contemplated a CEC who will hold office for six years independently… not as a promotion,” Justice Joseph addressed the government.
Venkataramani countered that by that logic a person who is appointed as EC would get six years in office and another six years as CEC.
“Are you saying that you have to necessarily appoint an EC as CEC?” Justice Joseph asked. The top law officer said that was how the law stood today.
“Where is that law? Show us… The law says CEC and ECs should separately have six years terms… And in case, he or she turns 65, will vacate office. But what are you doing, and doing for a long time… You are promoting ECs to CECs and ensuring that both don’t have a full term of six years, which is contrary to the law,” Justice Joseph said.
The court said three of the four candidates on the panel from which Goel was picked were 62 years old and could not have completed a full term of six years. Venkataramani said the names were selected on the basis of the IAS batches and seniority.
“Are you saying that only persons who are on the verge of retirement, who will definitely not get the term of six years are carefully picked and chosen? If so, you are violating the law,” Justice Joseph retorted.
The Attorney General said “weighing the relative suitability of a large number of people” for the post of Election Commissioner was a “difficult experience”.
“It will be if you have to do it in a day… You took just one day, November 18,” Justice Joseph responded, reserving the case for judgment.
EC selections spark tussle over executive, judicial boundaries
The Union government on Wednesday told the Supreme Court that the participation of the Chief Justice of India (CJI) in picking the election commissioners (ECs) cannot be the only guarantee of fairness in the selection process, even as the court asked the Centre to produce in 24 hours the file related to the appointment of former bureaucrat Arun Goel as an EC so as to demonstrate how ECs are chosen.
The Union government on Wednesday told the Supreme Court that the participation of the Chief Justice of India (CJI) in picking the election commissioners (ECs) cannot be the only guarantee of fairness in the selection process, even as the court asked the Centre to produce in 24 hours the file related to the appointment of former bureaucrat Arun Goel as an EC so as to demonstrate how ECs are chosen.
The day-long argument before a five-judge Constitution bench on Wednesday witnessed the first retort from the Centre, which has been in the firing line for not framing either a law or putting in place regulations laying down the eligibility criteria and selection mechanism for the chief election commissioner (CEC) and ECs — highlighting how the issue has become a tussle on the roles and boundaries of the judiciary and the executive.
While the Constitution bench, headed by justice KM Joseph, has 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 Election Commission of India (ECI), the government called it a “fallacious” and “constitutionally impermissible” suggestion that the executive cannot make an honest selection without the help of the judiciary.
“It cannot be a constitutionally permissible argument that but for the presence of a person from judiciary, executive can’t discharge its constitutionally mandated functions…Mere presence of someone from judiciary will ensure transparency is a wrong reading of the Constitution and is a fallacious argument. I would urge this court not to traverse through a path that may disturb the constitutional scheme of separation of power,” solicitor general (SG) Tushar Mehta said.
Invoking the doctrine of separation of power, the Centre, through Mehta, on Wednesday cautioned the bench from laying down any alternative mechanism for selection of CEC and ECs while giving a role to the CJI or the judiciary in the appointment process. The bench also included justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar.
The SG, emphasising that independence of the executive is as sacrosanct as independence of the judiciary, referred to the top court’s own selection mechanism for appointments of judges to high courts and the Supreme Court, highlighting how the collegium makes recommendation for appointment of judges without a written code regarding the assessment of candidates.
Mehta’s views before the Constitution bench came close on the heels of similar criticism by Union law minister Kiren Rijiju of the apex court’s model of selecting judges. Earlier this month, Rijiju commented that the Supreme Court collegium appoints people who are known to the judges and appear before them. At different occasions in the last one month, Rijiju has termed the collegium system “opaque”, and described the Indian selection system as the only one where judges appoint judges.
The government was responding to a batch of four public interest litigations (PILs) that have pressed for issuance of directives to it for setting up a neutral and independent selection panel for recommending names to the President for appointments as CEC and ECs.
The petitions have 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.
Since the Constitution bench started hearing the case on Thursday last week, it has constantly grilled the government over the lack of regulations to guide appointment of CEC and ECs. On Thursday last week, 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.
On Tuesday, the court 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”.
When the hearing resumed on Wednesday, attorney general R Venkataramani, also appearing for the government, argued that there is no vacuum in the law since Article 324 itself provides for how ECs are appointed, besides the fact that there is no “trigger point” for the court to intervene in the absence of any specific allegation regarding an appointment.
The court, however, replied: “You or any government will appoint a ‘Yes man’…somebody who aligns with your thoughts, somebody who do your bidding. That’s why independence is the most important virtue here. I may be the most competent man but if I am weak in front of the government or the Prime Minister, and can’t take hard calls…you need independence in situations like this.”
The AG, on his part, added that there is a system in place and bureaucrats, on the basis of their seniority, are appointed in ECI through a convention. Additional solicitor general Balbir Singh, who also represented the Centre, too emphasised that the existing mechanism has worked pretty well there are no allegations that the objective of parliamentary democracy has not been achieved.
To this, the court asked the law officers: “We are not saying that the system is not correct. We are asking should there not be a transparent mechanism to avoid all complaints and suspicions? Nobody knows what goes on inside…What’s your mechanism? You appointed someone two days ago. Can you tell us how was that man appointed?”
It took a grim view of the fact that the government appointed Goel while the petitions seeking an independent selection mechanism for ECs was being argued before it and that an application filed by one of the petitioners to stop any new appointment in accordance with the existing system was also pending.
“You could have restrained yourself… but now, we would like you to produce the file related to the appointment tomorrow at 10.30. Produce the file if you say there is no hanky-panky. You have been telling us that everything is hunky dory and best men are being appointed…so show us what was the mechanism by which he was appointed while the matter was pending here,” the bench told Venkataramani.
The bench clarified that it will not examine whether Goel was appointed correctly or not since his appointment is not under challenge, adding that the file would assist the court in testing the government’s assertions about the sanctity of the selection process for CEC and ECs.
It also asked senior counsel Gopal Sankaranarayanan, who appeared for one of the petitioners in the matter, to explain on Thursday how the court can intervene when there is no vacuum in the law nor any breach of fundamental rights.
HEARING ON 22nd. NOVEMBER (TUESDAY)
Successive governments have ‘completely destroyed’ the independence of the Election Commission of India (ECI) by ensuring no chief election commissioner (CEC) gets the full six-year term to head the poll body since 1996, a Constitution bench in the Supreme Court lamented Tuesday, adding the absence of a law for appointment of election commissioners (ECs) has resulted in an ‘alarming trend’.
The five-judge bench further remarked that the silence of the Constitution on how to pick CEC and election commissioners (ECs) has been exploited by political parties of all colours, giving rise to concerns if those appointed are expected to do the bidding of the dispensation at the relevant time.
“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.
It added: “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 top court’s strong observations on the absence of a law or regulations have come close on the heels of criticism by the government of the apex court’s own model of selecting judges for constitutional courts.
Earlier this month, Union law minister Kiren Rijiju commented that the Supreme Court collegium appoints people who are known to the judges and appear before them. At different occasions in the last one month, Rijiju has termed the collegium system ‘opaque’, and described the Indian selection system as the only one where judges appoint judges.
As the Union government argued on Tuesday that there was no need for the court to interfere since the appointment process has worked well, the bench asked: “It is due to obdurate nature and obstinacy of the ruling political party, whichever colour it may be, that it will not want to let go of the present structure where they have a free hand. This is self-serving and they won’t want to let go of it… Each party that comes to power will want to hold on to it. Now, the question is when purity and fairness of elections are intertwined with democracy, should the court remain silent?”
The bench, which also included justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, said that despite a positive mandate under Article 324(2) and recommendations made by Dinesh Goswami Committee in 1990 to usher in greater independence for ECI, Parliament has not acted on framing a legislation.
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.
A batch of four public interest litigations (PILs) pressed for issuance of directives to the Centre for setting up a neutral and independent selection panel for recommending names to the President for appointments as CEC and ECs.
Senior counsel Gopal Sankaranarayanan, and advocates Prashant Bhushan and Kaleeswaram Raj appeared for the petitioners, who have argued that the independence of the poll body could be ensured by way of having a completely neutral selection panel so that ECI is totally free from political and executive interference.
Criticising the government for not coming up with a law despite a positive mandate under Article 342(2), the petitioners proposed last week that the top court could direct a selection panel on the lines of the Central Bureau of Investigation (CBI) wherein the panel comprises the Prime Minister, the Chief Justice of India, and the leader of the single largest party in the Opposition.
Under the 1991 Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, CEC and ECs shall hold office for a term of six years or till they are 65, whichever is earlier. At one point during the day-long hearing on Tuesday, the bench cited the presence of the CJI in the selection panel for the CBI director. “The very presence of CJI is a message that you can’t play games,” it commented.
Attorney general R Venkataramani, representing the Centre, sought to persuade the bench that the constitutional provision does not cast an indispensable mandate on Parliament to frame a law, and nor has the situation become such that a judicial interference is required to regulate appointment of CEC and ECs. He argued that the court may have to intervene only in situations where the aberrations in the selection are patently destructive of the independence of ECI or fundamental rights of the citizens are getting impacted.
But the Constitution bench remained firm.
“You will have to take some steps. When you yourself felt the need to set up the committee but you haven’t done anything in the last three decades, should the court remain silent? If there is a room for making a law, then how long you can argue that you will not. We are taking this up after 70 years. Till how long will you continue? Something has to be corrected somewhere… Situation on the ground is fairly alarming,” observed the bench.
“You look at the position of CEC and ECs. The word ‘superintendence’ connotes reservoir of power, authority and duties that have been put on fragile shoulders of three men… What’s important is to put a system in place. In any given number of situations, the character of a man is of utmost importance — ‘I won’t allow anybody to bulldoze me. Whether it’s the Prime Minister or anybody else, I don’t care about it.’ We want someone like him. So, how do we get the man appointed? That’s why the process of appointment becomes crucial,” it emphasised.
The court, while adjourning the case for Wednesday, added: “How to select the best is the question. There has to be a transparent mechanism… If you are not moving forward even after several decades, can you argue the court can still not say anything?… We know these cannot be a matter of simplistic solution but that alone can’t be a reason not to wade through the complex web of provisions and principles to finally find the light if we can.”
It also requested the AG, who will continue his arguments on Wednesday, to answer categorically if there is a process that the government follows in appointing CEC or EC. “Or, inform us if you always use your wisdom and there is no process,” it said.
