Seeking the clarity on the appointments of the Chief Election Commissioner (CEC) the constitutional bench of Supreme Court (SC) yesterday said that the crucial position should be held by someone who “does not allow himself to be bulldozed.” The bench comprising Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar observed that as the constitution assigns vast power and responsibility to the CEC, their appointments should follow the ideals of “neutrality”.
Justice Joseph called for the inclusion of the CJI in the appointment committee and said, “Apart from competence, what is important is that you need someone with character, someone who does not allow himself to be bulldozed. So the question is who will appoint this person? The least intrusive will be a system when there is a presence of the Chief Justice in the appointment committee. We feel his very presence will be a message that no mess-up will happen. We need the best man. And there shouldn’t be any disagreement on that. Even judges have prejudices. But at least you can expect that there will be neutrality.”
The bench significantly referred to the integrity and neutrality of former CEC T N Seshan who served the post from 1990-1996. The apex court also added that the instance like Seshan happens “once in a while”.
It also accused the government of selecting those persons who due to their approaching retirement age of 65 years fail to complete their 6 years’ tenure as provisioned in The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991.
Severely criticising the government, the bench said, “So, what the government has been doing is that because it knows the date of birth, it ensures that the one who is appointed does not get his full six years. So, the independence gets thwarted. This trend has continued.”
The top court also referred to Article 324 that asks the parliament to make laws for the appointment of CEC. However, till the date it has not been constituted. The bench pointed out that the silence of the constitution is “exploited by all.”
Underneath the observations of the SC lies the lack of law that guides the appointment. At this juncture, it is prudent to look at what is the procedure of appointing the CEC? What are the earlier observations of the court on this matter? Who is T N Seshan and how was he so different that the top court referred to him as an instance that happens ‘once in a while’?
Here’s all you ned to know.
How is the Chief Election Commission appointed?
According to Article 324 (2), the power of appointing Chief Election Commissioner and the two Election Commissioners (EC) is vested with the President of India. The section however clarifies that it is subject to the provisions of laws made by the parliament.
It notes, “The President shall fix the number of ECs in a manner he sees fit, subject to the provisions of any law made by Parliament.” Through this the said article keeps the issue open for the parliament to legislate and deliberate upon the issue that even the top court referred to.
Notably, till now there is no law regarding the appointment of ECs and thus it is the government of the time whose council of ministers in consultation with the Prime Minister advises the President on the basis of which the appointment is made. Neither any collegium, nor any opposition is engaged into the procedure.
What is the Tenure and Qualification of a CEC?
The tenure of the CEC is of six years. However, the age of retirement is 65 years keeping it open for the government, as the top court pointed out to choose the officials who will not be able to fulfil her/his tenue. Since 2004, no EC has served the full tenure.
If the qualification of the CEC is concerned, there is nothing much mentioned anywhere. As they have the stature of a Supreme Court Judge, it is conventionally the retired cabinet secretary or senior most civil servants who served the position. Notably, the SC in Bhagwati Prashad Dixit Ghorewala vs Rajiv Gandhi case in 1986 rejected the notion that the candidate needs to have a qualification similar to a SC judge.
What are the arguments that favour a consultative process of appointment?
The issue came up to the SC through a petition filed by one Anoop Baranwal who asked the top court to intervene to create an “independent mechanism for appointment of Chief Election Commissioner (CEC) and the Election Commissioners (ECs).”
The top court in 2018 sent the matter to the constitutional bench exercising its power under Article 145 (3) to have a ‘close look’ at the issue. As per the said article the top court can send matters that have substantial questions of interpretation of law involved to the constitutional bench.
The arguments that have come out through decades in favour of modifying the appointment procedures of the CEC give us a detailed picture.
In 2009, then the CEC N Goapalaswamy recommended removal of his fellow Election commissioner Navin Chawla on the ground that he is closely related to the political establishment of the time. However, then the President of India Pratibha Patil on the advice of the government rejected the request.
According to the law commission reports no. 255, in most of the countries across the world that have Election monitoring authorities, the process of selection of its chief is consultative. The report asked the government to form a three members’ committee where Prime Minister would be the chairperson and CJI and the leader of the opposition will be members to fix the appointment of ECs. The Goswami committee formed to examine the electoral reforms in 1990 recommended collegium for the selection of the CEC.
What were the reforms implemented by T N Seshan?
The Election Commission of India formed in 1950 though was vested with the responsibility of conducting free and fair elections, till 1990 bribing for the election was mundane. It was only after 1990 when T N Seshan, former cabinet secretary took over as the Chief Election Commissioner of India, the situation started changing.
In accordance to the constitutional power, Sheshan implemented several reforms of which the most significant was identifying 150 malpractices during the elections. He included bribing, offering liquors, use of religions to get votes within the list along with several other guidelines that transformed the whole voting mechanism. He was the person behind issuance of voter id card and the model code of conduct. He also had put a bar on the poll expenses of the candidates.
His reformist zeal was not received well by the then P V Narasimha Rao-led Congress government. In 1993, Rao passed an ordinance and got the President’s assent under Article 342(2)[3] to deploy two Election Commissioners and subsequently appointed M S Gill and G V G Krishnamurthy as hisn fellows.
Seshan cried foul saying it was an effort to curb down his powers and filed a petition to the SC. However, the top court dismissed his petition and said, “the concept of plurality is writ large on the face of Article 324, clause (2) whereof clearly envisages a multi-member Election Commission comprising the CEC and one or more ECs.”
Seshan completed his ternure and retired in 1996. Besides Seshan, India also witnessed honest efforts of CECs like Justice Lyngdoh, S Y Qureshi among others who stood their ground in front of lashes from the government.
