JAIN GOT MASSAGES...

INDEPENDENCE OF EC...

It added: “In this way, the so-called independence, which is just a lip-service, is completely destroyed... Particularly in view of the disturbing trend that 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.

At a press conference on Tuesday, BJP spokesperson Gaurav Bhatia demanded that Jain be sacked.

“The person giving massage to Jain is accused under Pocso Act. Why is a person, accused of a heinous crime, giving Jain a massage? It was possible because Jain enjoys the protection of Arvind Kejriwal. It is not wrong to say that Kejriwal, who took oath to protect the people, is now protecting a person accused of raping a minor. The accused is giving massage [to Jain] and in return Kejriwal will give him protection,” Bhatia said.

Bhatia asked Kejriwal to respond to the charges. “Kejriwal should respond whether he is standing with the justiceseeking parents of the minor or with the person accused of raping the minor. Why is Jain, who has been accused of money laundering and is giving protection to a rape accused, not being sacked?” he said.

Until his arrest earlier this year, former health and home minister Jain, was also in-charge of prisons.

The AAP’S Delhi chief, Gopal Rai, dismissed the BJP’S charges, saying that it was resorting to allegations because it is going to lose the upcoming municipal elections in Delhi.

“The BJP believes that by abusing Kejriwal, they will manage to get votes. The BJP wants to run away from answering people’s questions. When people ask them what they have done to clean Delhi, they say ‘look at what is happening in Tihar jail’. The BJP will have to be accountable to the people for their last 15 years’ rule in the MCD,” Rai said.

The Municipal Corporation of Delhi (MCD) elections will be held December on 4 and the votes will be counted on December 7.

The AAP leader added: “The issue is not about special treatment to Satyendar Jain. The BJP is rattled because people are going to give a treatment (defeat) to the BJP on December 4 when the MCD polls happen.”

The minister, however, did not respond to the specific charge about the rape accused and the AAP’S previous contention that the minister was undergoing physiotherapy.

A second prison official, who asked not to be named, said the rape accused is lodged in a cell next to Jain’s. “That person has been transferred so that he is not forced to do anything for any inmate. He is not a physiotherapist as some reports claimed on social media,” the official said.

After the video emerged on Saturday, deputy chief minister Manish Sisodia said Jain sustained an injury in the prison and the massage was a part of a therapy doctors had recommended.

“While in jail, he slipped and suffered a spinal injury, because of which he underwent two surgeries. While discharging him, the doctors recommended physiotherapy. This is not a luxury body massage, but pressure therapy being provided to an injured person,” Sisodia said.

HT could not independently verify the authenticity of the video, which is a CCTV camera footage from inside the prison on three different days in September.

Jain’s legal team on Saturday moved a special court seeking contempt action against the Enforcement Directorate, alleging that ED has leaked the CCTV video despite the undertaking given in the court. The agency, however, has denied the allegations.

Bhatia said the facilities provided to Jain violated the law. “If a prisoner gets the facilities of mineral water, TV and AC, how is it wrong to raise questions on it? If there is any medical issue, then medical facility will be given as per the jail manual, but every facility being given to Satyendar Jain violates the law,” he said.

BJP spokesperson Praveen Shankar Kapoor on Tuesday wrote a letter to the Delhi Commission for Women chairperson Swati Maliwal, demanding that the DCW seek a report from Tihar Jail administration on the incident and sought appropriate action against Jain. ED arrested Jain in May under prevention of money laundering act (PMLA). The central agency’s probe is based on a 2017 case of the Central Bureau of Investigation (CBI), in which the AAP leader and his wife Poonam Jain were accused of amassing disproportionate assets worth Rs 1.47 crore between February 2015 and May 2017, which was 217% more than their known sources of income. The agency has also alleged that Jain set up shell companies to launder money between 2011 and 2016.

Jain has denied the allegations, and the AAP has described CBI and ED action as “political vendetta”.