First published on: 24 Nov 2022
A five-judge constitution bench of the Supreme Court is deciding on a batch of petitions demanding reforms in the process of appointment of the Election Commissioner and other members of the Election Commission of India (ECI). The bench headed by Justice KM joseph and comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravi Kumar has heard the matter continuously over the past four days and has reserved its judgement today.
Throughout these hearings, the bench constantly put to question the process followed by the government in making appoints to the post of CEC and other members of ECI and asserted that this was well within the purview of judicial review under Article 32 of the Constitution. The counsels for the Union Government however, insisted that there was no trigger point that has invited this scrutiny. The petitioner maintained that most significant and persistent trigger was, that there was no law dealing with the subject, even when the Constitution has envisioned it. During the hearing this past week, the bench also sought the documents (files) surrounding the appointment of Arun Goel as the current CEC, a post that has been lying vacant since May 2022. This post of CEC was filled hastily within two days even while the Supreme Court was hearing the matter. While there is no express embargo on such appointments, during the active hearing of a constitutional aspect under scrutiny, the court nevertheless expressed its serious doubts over the fashion of this appointment.
The matter had been referred to the Constitutional Bench after a Division Bench of the Apex Court had held that ‘a close look and interpretation of the provisions of Article 324 of the Constitution of India’, which states superintendence, direction and control of elections to be vested in the Election Commission, may be required, reported LiveLaw.
Law as it stands
To put things in perspective, the appointment of members of ECI is governed by the Constitution 1991. The Article 324 of the Constitution states thus:
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President
About the service and tenure of the Election Commissioner, there is sub-clause 5:
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine; Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner
The Election Commission (Conditions of Service of Election Commissioners And Transaction of Business) Act, 1991 prescribes the salary, term and pension matters. A plain reading of Article 324 makes it clear that the process of appointment of the EC members has been left to the law to be made by the Parliament; a lacuna that still persists in the absence of such a law. Even the present constitutional bench pointed out that it’s been 72 years and no law has been put in place.
Hearings
On November 22, Justice Joseph questioned the dubious manner in which Election Commissioners have been appointed since 2007, so that they do not get a full term of 6 years as stipulated under the Act. As per the Act, the CEC is supposed to have a term of 6 years or till he/she attains the age of 65, whichever is earlier and appointments are being made so that the CECs get only 2 years or less and retire due to their age.
“Now, CEC’s are not getting their full terms. How will they carry out their tasks? This trend has continued. I did the math there also. Be it UPA govt or this govt,” he added.
Section 4 of the Act deals with “term of office” states thus:
4. Term of office.— The Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years from the date on which he assumes his office:
[Provided that where the Chief Election Commissioner or an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age:]
Justice Joseph also underlined the safeguards in other neighboring countries when it comes to appointing Election Commissioners and said, “Silences of the Constitution is being exploited by all. They (the Executive) have used it to their interest.” AG R Venkatramani responded, “”The Constitution does not imagine a situation that a law needs to be necessarily made. Such issues that are for parliament to consider cannot be made a subject matter for a writ of mandamus.”
The bench pointed out that the court was only questioning the manner in which the power to appoint the CEC was being exercised which the court is empowered to, under Article 32 of the Constitution. The bench has also orally remarked that the least intrusive system would be where the Chief Justice is a part of the appointment committee. “We feel that his very presence will be a message that no mess up will happen… Even judges have prejudices. But, at least you can expect that there will be neutrality,” said Justice Joseph.
When the SG submitted that the apex court can certainly examine and quash the appointment of an election commissioner if an unqualified person is chosen, the bench said that no qualification has so far been fixed for the post so there is no question of someone being unqualified for the post, reported Times of India. ON the issue of short tenure, the AG clarified that the cumulative tenure of a person (as an EC and CEC) should be considered and by that yardstick all enjoyed around a five-year tenure which cannot be termed as a “short period”.
On November 23, the hearings continued and the Solicitor General Tushar Mehta submitted that “a presupposition that only with the presence of the judiciary, independence and fairness will be achieved, is an incorrect reading of the constitution.”
Continuing his submissions, AG R Venkatramani pointed out that there was no trigger point calling for the court’s intervention to analyse and evaluate the process of appointment. He submitted that all senior bureaucrats and officers at the state and the central government are taken into consideration while appointment.
Regarding absence of any “trigger point”, senior counsel, Prashant Bhushan appearing for the petitioners asserted that the biggest trigger was that there was no law dealing with the subject when the Constitution itself envisions a law under Article 324(2) of the Constitution
Right to vote
When the question about right to vote being a constitutional right, came up for consideration, the counsel appearing for ECI submitted that right to vote is a statutory right, based on earlier precedents. The bench however, read out Article 326 of the Constitution and said that “The Constitution has contemplated giving the right. That is the fundamental thing.”
Article 326 of the Constitution reads as follows:
326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; but is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
The bench pointed out that the disqualification for exercising the right to vote was already contemplated under Article 326 and any law to be made by the Parliament is to be ancillary for giving teeth and flesh to the provisions of the Article. “It (minimum age) was 21 years initially and was lowered to 18 years. The ancillary lawmaking is contemplated for giving it teeth and flesh. The disqualification cannot be enlarged by the legislature. What are the disqualifications that are mentioned in Article 326 itself”, Justice Joseph S Amirthavalli v. The District Collector, Coimbatore and ors said. “”it may not be correct to say that it (Right to vote) is only a statutory right,” he added.
Files of appointment sought
The bench expressed its dismay over the appointment of the present CEC made by the government during the pendency of this case. The bench said that it would have been appropriate had the appointment not been made when the matter was being heard. The Central government appointed Arun Goel as CEC on November 19. The post had been lying vacant since May 2022.
Prashant Bhushan pointed out that Goel took voluntary retirement from service and within two days his appointment as CEC was notified.
“He was a sitting Secretary in the Government. On Thursday this Court heard the arguments. Friday he was given voluntary retirement. His appointment order was issued on Saturday or Sunday. And Monday he started working”, Bhushan said.
AG R Venkataramani denied that there was any “design” behind the appointment as projected by Bhushan. However, the bench insisted upon seeing the files as it noted that for voluntary retirement 3 months’ notice period is required to be served. “Therefore, we would like you to produce the files relating to the appointment of this officer. So that if you are in the right, as you claim, that there is no hanky-panky, then there is nothing to fear,” said Justice Joseph.
The AG had apprehensions over producing the said files before the court but the bench persisted, “This is not adversarial. This is out of our curiosity. We only want to see the circumstances”.
“We don’t think it is a matter where you should be withholding information. We are living in an open democracy”, Justice Joseph told the AG.
Judgement reserved
Senior Advocate Gopal Sankaranarayanan appearing for the Petitioner submitted that until today, the Central Government has not appointed anyone who gets the full term of six years (due to 65 years being the upper age limit) which keeps the EC on a leash and puts the independence of the institution to question. He demanded a visible and clear process without arbitrariness.
Justice Joseph observed that among the four names shortlisted for appointment, the government has chosen people who will not get a six years tenure. The bench sought to know what was the criteria behind the shortlisting of four names by the Law Minister that were recommended to the Prime Minister for his approval for the appointment as the Election Commissioner.
“We don’t have anything against an individual. This man, in fact, is excellent in terms of academic. But we are concerned with the structure of the appointment. On November 18, we hear the case. On the same day you move the file, on the same day the PM says I recommend his name. Why this urgency?…It says based on the list maintained, there are four names that you have recommended. I want to understand that out of a vast reservoir of names, how do you actually select a name…Someone who was about to be superannuated in December. He is the youngest among the four names who were recommended. Is that a criteria? How did you select?” Justice KM Joseph asked, as reported by LiveLaw.
The bench also questioned why a post that had been lying vacant since May 15, 2022 was filled within a day’s time.
“What prevailed upon the govt that you did this appointment superfast on one day? Same day process, same day clearance, same day application, same day appointment. File has not even travelled 24 hours! Lightning fast!” remarked Justice Ajay Rastogi.
The AG responded that usually the process of appointment does not last more than three days.
When asked about the criteria, the AG said that Batch, date of birth, seniority are usually the criteria applied. To this, Justice Joseph commented,
“So ultimately you are saying only those people need to be appointed who are on the verge of appointment. So that they don’t get a full 6 year period. Carefully. Is that the law? You are violating Section 6. We are saying this clearly”.
He pointed out that the government is using the proviso and the provision has now become the rule.” Can it be done so,” he questioned. To this, the AG responded, “Yes it happens like that but there is no design behind that. Unless I have a 40 – 50 year profile to show how and why it is being done like that.”
Today, November 24, the bench has reserved its judgment in this matter.
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