Why no women in top EC posts: Apex court

NEW DELHI: A constitution bench in the Supreme Court on Thursday asked the Union government if it could explain the method followed or yardsticks adopted in picking up the chief election commissioner (CEC) and the election commissioners (ECs), and termed it “disturbing” that India has not had even a single woman CEC in 75 years of its independence, suggesting that gender diversity in the appointment in the Election Commission of India (ECI) is as important as having competent and independent persons to head the poll body.

With the government silent on the method, the bench remarked: “It looks like there is no mechanism and you follow your own procedure. Is it not defeating the wishes of the framers of the Constitution when you say that there is no vacuum while the Constitution lays down that such appointments have to be subject to the provisions of the law to be made by Parliament?”

The Supreme Court bench’s remarks are significant because they come amidst criticism by the government of the apex court’s own model of selecting judges for constitutional courts.

Last week, 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.

Later in the proceedings, the bench, which was hearing a clutch of petitions demanding an independent selection panel to appoint CEC and other election commissioners (ECs), lamented that judges are criticised for favouring candidates known to them when they make selections through the collegium system. “We are also the stakeholders when we appoint judges. People are making comments that we are making appointments of people we know. We have been saying that we assess everything; we look at the credentials and the judicial knowledge, but still, we cannot rule out the perception.”

Commenting on the selection of CECs and ECs, the bench, headed by justice KM Jospeh, said: “There may not be any process absolutely perfect to get honourable men, or let us say honourable women.

That brings us to the fact that we have not been able to get even a single woman chief election commissioner in the last 75 years. We find it a little disturbing”. The other members of the bench are justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar.

To be sure, India has had one woman CEC, V S Ramadevi, who served in that position for two weeks in 1990; she went on to become the first woman governor of Karnataka in 1999.

The bench observed that the mechanism for the selection of the CEC and ECs appear to be a “grey area” and that the apex court could examine the necessity of having a better system since Parliament is yet to come up with a law to regulate appointments in ECI.

It remarked that the court cannot stop the Parliament from framing a law but the option of putting in place a mechanism until there is a law is open before the court.

Attorney general R Venkataramani, representing the Centre, could argue only for a few minutes on Thursday before the bench called it a day. In his brief submissions, the AG claimed there is “no vacuum” in the law and therefore, judicial intervention is not required. He will resume his arguments on Tuesday next week.

At present, ECI is a threemember body, with a CEC and two ECs. Under Article 324(2) of the Constitution of India, the President is empowered to appoint the CEC and ECs.

This provision further stipulates that the President, who acts on the aid and advise 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 PM 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 litigation (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 Anoop Chaudhary and Gopal Sankaranarayanan, and advocates Prashant Bhushan and Kaleeswaram Raj appeared on behalf of the petitioners, arguing the independence of the poll body could be ensured only by way of having a completely neutral selection panel so that ECI is totally free from the shackles of political and executive interference.

Criticising the government for not coming up with a law despite a positive mandate under Article 342(2), the lawyers proposed that the top court could direct a selection panel on the lines of the Central Bureau of Investigation (CBI) wherein the panel comprises the PM, the Chief Justice of India, and the leader of the single largest party in the Opposition.

On Thursday, when Bhushan argued that the collegium for selection of judges could also be considered for selecting CEC and ECs, the constitution bench observed that no system of selection can be perfect, especially when the element of human discretion is involved.

“Even the collegium system has its problems. So, the main thing is the pursuit of truth. We are imperfect. We continue to be imperfect. It’s all trying to make the most of it...Discretion is to how you respond to a particular situation. If you have laid down rules, degree of discretion is reduced...How the human elements can be minimised, that would be the key to transparency,” it remarked.

The constitution bench will hear the case next on November 22.