Days after Modi’s former chief secretary in Gujarat was appointed chief election commissioner, the SC has prodded the government on the need for an independent election commission
The Supreme Court on July 6 asked the Centre to enact a law for appointing independent/neutral members to the Election Commission of India (EC), indicating that if Parliament does not do it, the judiciary may have to step in to fill the vacuum. Expectedly, the Solicitor General Ranjit Kumar, however, opposed any move by the apex court to step into the legislative domain arguing that even Parliament had never thought it necessary to enact a law for regulating the appointment process of EC members.
The issue comes up at a time when Election Commissioner (EC) Achal Kumar Joti was on July 4 appointed as the next chief election commissioner (CEC). He succeeds Nasim Zaidi. Joti, 64, who was the chief secretary of Gujarat when Narendra Modi was chief minister, will take over as the head of EC on July 6, a notification issued by the law ministry said. Zaidi will demit office on July 5. He is a close confidante of Modi.
Article 324(2) of the Constitution says: 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.
However, to date, there is no specific law or rule which says how the appointment process or the selection criteria is to be adopted for appointment of EC members, leaving the task to the party in power to make the appointments, though as a norm civil servants are appointed to the posts.
Incidentally, the recent appointment by the Modi government of Joti, a 1975-batch IAS officer who joined the three-member commission as an election commissioner on May 8, 2015, will be in office till January 17, 2018. He retired as the Gujarat chief secretary in January 2013.
A CEC or an EC can have tenure of six years or hold office till the age of 65 years, whichever is earlier. Joti, who will be the 21st CEC, has also served as the Gujarat Vigilance Commissioner and worked in various capacities in the state, including as the chairman of the Kandla Port Trust between 1999 and 2004 and the managing director of the Sardar Sarovar Narmada Nigam Ltd.
Hearing the public interest matter on July 6, the SC while admitting that persons with outstanding calibre had been appointed so far, conceded with the pleas made by social activist and PIL petitioner Anoop Baranwal that there needs to be proper mechanism for appointing members and CEC for the country's apex poll watch body. Advocate Prashant Bhushan, appearing for the petitioner, submitted that appointment of EC members was as important as it was for appointment of judges in the country to ensure independence of the poll watch body.
Agreeing with the petitioner's contention a bench of Chief Justice J.S. Khehar and Justice D.Y. Chandrachud asked Solicitor General Ranjit Kumar for the government's stand on the issue. Kumar submitted that there was no need for any statutory enactment as the appointments made till date has never raised any controversy.
But the apex court noted that Article 324(2) mandated a law to be made by Parliament on the basis of which the President is supposed to appoint the CEC and other election commissioners."The expectation is that Parliament will make the law. The law has not been made then can't the court lay down the procedures," the bench asked the Centre.
Justice Khehar said, "We know very independent people, very outstanding people have been appointed. But there is also a mandate under Article 324."
Justice Chandrachud asked, "The provision says subject to law made by Parliament. When Parliament does not act, can't the court interfere when there is a breach? True, Parliament has sovereign powers to enact. When Parliament has not enacted a law, can't the court say it will ensure objective of the law is achieved?"
The CJI observed, "If there is anything here there is an express expression, that Parliament will make a law. Office of Election Commission needs such regulations. It needs neutral person of all political parties… so that transparency is ensured in its functioning."
Kumar argued that the appointment is done after due consultation between the President and the Prime Minister. However, the CJI countered the argument saying the decision to appoint the EC members is taken by the Prime Minister and the council of ministers and not by the President.
But, the Solicitor General argued that Parliament never felt the need for enacting a law on the issue. "Your lordship may not do that. There is no gap. It is for Parliament to decide," he submitted.
The court adjourned the matter for two months.
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