SC asks Centre for file on EC’s appointment
Supreme Court on Wednesday asked Centre to produce before it the files pertaining to the appointment of Arun Goel as the Election Commissioner. Goel was appointed to the position on November 19 and took charge on November 21.
A five-judge bench led by Justice KM Joseph asked Attorney General R Venkataramani to produce the files on November 24. The apex court added that it would have been more appropriate if the appointment awaited the outcome of the hearing before the constitution bench on the selection mechanism of CEC and ECs.
“Because this appointment was made after we began hearing this case, let’s see how the appointment is made. You should not have any danger since you say everything is hunky-dory,” the bench noted.
Sushil Chandra’s retirement as the chief election commissioner in May 2022 left the post of one commissioner in the three-member ECI vacant. Rajiv Kumar succeeded Chandra while Anup Chandra Pandey is the other election commissioner.
A 1985 batch Punjab cadre IAS officer, Goel, will be in line to become the next chief election commissioner after Kumar’s tenure ends in February 2025.
The office of an election commissioner or chief election commissioner can be held for six years or till the age of 65, whichever is earlier.
The court also noted that the inclusion of the Chief Justice of India in the consultative process for the appointment of Chief Election Commissioner would ensure independence of the poll panel.
The apex court was of the
view that any ruling party at the Centre ‘’likes to perpetuate itself in power’’ and can appoint a “Yes Man” to the post under the current system.
Hearing a batch of pleas seeking a collegium-like system for the appointment of election commissioners (ECs) and CEC.
The Centre argued that a 1991 Act ensured the Election Commission remains independent in terms of salary and tenure to its members and there is no “trigger point’’ which warrants interference from the court.
It said that the mechanism adopted for appointment of CEC is seniority among the election commissioners, who are appointed by convention from secretary or chief secretary level officers of the Centre and state level, respectively.
However, a five-judge Constitution bench headed by Justice KM Joseph said the independence of the institution should be ensured at the threshold for which the appointment should be scanned at the entry level.
‘’Each ruling political party in the Centre likes to perpetuate itself in power. Now, what we want to do is concentrate on the consultative process for the
appointment of CEC and the inclusion of the Chief Justice of India in the process would ensure the independence of the commission”, the bench also comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravi Kumar said.
Attorney General R Venkataramani, appearing for the Centre pointed out that the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was a watershed moment that ensured independence in salary and tenure to the ECs. “The law was passed by the Parliament after the report from the Dinesh Goswami committee. So, it cannot be said that there was no application of mind. The law provides and ensures that the commission remains independent in terms of salary and tenure of its members which are intrinsic features for the independence of an institution”, he said.
The bench told Venkataramani that the 1991 law he is referring to only deals with terms of a service condition which is evident from its very name.
“Suppose the government appoints a ‘Yes Man’, who has the same philosophy and is likeminded. The law provides him all the immunity in tenure and salary, then there is no so-called independence in the institution. This is an election commission, where independence should be ensured at the threshold”, the bench said. Venktaramani said that there are various facets of independence and salary and fixed tenure are some of them.
“There is no trigger point which warrants interference from the court. It is not the case, that there was some vacancy and it is not being filled or there is some arbitrariness which warrants courts interference in the process. The mechanism presently adopted is that the senior most election commissioner is appointed as Chief Election Commissioner (CEC)”, he said.
On Tuesday, the top court had termed the exploitation of the “silence of the Constitution” and the absence of a law governing the appointments of election commissioners and chief election commissioners a “disturbing trend”.
The court has flagged Article 324 of the Constitution, which talks about the appointment of election commissioners, and said it does not provide the procedure for such appointments.
Moreover, it had envisaged the enactment of a law by Parliament in this regard, which has not been done in the last 72 years, leading to exploitation by the Centre, it has said.
The court has pointed out that since 2004, no chief election commissioner has completed the six-year tenure and during the 10-year rule of the UPA government, there were six CECs and in the eight years of the NDA government, there have been eight CECs.