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 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 the 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 SC 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”.