SUPREME COURT

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”, and described the Indian selection system as the only one where judges appoint judges.

Centre 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 PM and the council of ministers under the seal of the President. The rules for such appointments are also silent on a candidate’s qualification.

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, it 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 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.