Explained: Why SC and Centre are warring over Election Commission

The Supreme Court, hearing petitions seeking the setting up of a collegium-like system for appointing the Chief Election Commissioner (CEC), appears to be keen on ensuring the independence of the poll body.

After seeking the details of the newly appointed CEC, Arun Goel, the top court expressed unhappiness with the process being followed currently and has suggested that the Chief Justice of India (CJI) be made part of the consultative process in the appointment of election commissioners.

Goel, a 1985-batch IAS officer, was appointed as the CEC on November 18, 2022, in what appears to be a really quick approval process. His name was proposed by Law Minister Kiren Rijiju and cleared the same day, including approval from Prime Minister Narendra Modi. Interestingly, Goel is set to retire at the end of December 2022.

Also read | EC appointment: ‘What’s the tearing hurry?’ SC asks; ‘hold your mouth,’ says Centre

Former Union Law Minister M Veerappa Moily and ex-CEC SY Quraishi on Wednesday supported a consultative mechanism to appoint the CEC and election commissioners and moved the court. The matter was referred to a five-judge Constitution bench for authoritative adjudication, where the court questioned the process of appointing the CEC.

“What kind of evaluation is this? Although, we are not questioning the merits of Arun Goel’s credentials but the process,” the bench headed by Justice KM Joseph said.

“The Minister of Law picks the names from the list of four names shortlisted…The file was put up on November 18; moves the same day. Even the PM recommends the name the same day. We don’t want any confrontation, but was this done in any haste? What’s the tearing hurry?” the court asked.

The top court also sought to know why no initiative was taken thus far to fill the post that fell vacant on May 15 and suddenly the same was filled within 24 hours.

How CEC is appointed 

Currently, India follows a three-member Election Commission structure wherein a CEC is aided by two Election Commissioners who are appointed from a batch of retired IAS officers. 

Also read: EC shouldn’t be ‘Yes Man’ of govt, but independent authority: SC

They are appointed by the President of India on the advice of the Council of Ministers or the ruling government. They serve a term of six years or till the age of 65 years, whichever is earlier.

They enjoy the same status and receive salary and perks as available to Supreme Court judges. Once appointed, they cannot be removed from office except by impeachment by Parliament. The Election Commissioners are given full independence to carry out elections across the country in a fair and unbiased manner. 

However, while seniority is a factor in the appointment of the ECs, in the past several years, there have been allegations against the poll body for overlooking instances of purported violations by the ruling party.

Several eminent people, especially former law ministers and election commissioners, have in the past raised the demand for a more fair and transparent process of appointing the top election officials.

Appointments as per Constitution

Responding the petitions in the court, Attorney General R Venkataramani, appearing for the Centre, noted that the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 ensured independence in salary and tenure to the ECs and it was being followed without any room for “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 court’s interference in the process,” he told the court.

“There is no vacuum in the Constitution. Election commissioners are presently appointed by the president on the aid and advice of the council of ministers. When there were no enactments, the Vineet Narain and Vishaka judgments (that laid down guidelines for dealing with sexual harassment at workplace) happened but in this case, there is no such vacuum,” he said, adding that the court has to look at the issue from this perspective.

The bench comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravi Kumar said 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 like-minded. 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,” it said.

What SC wants from CEC

The SC bench, however, said that since 1990, voices have been raised from various quarters. Once, veteran BJP leader LK Advani had written for a collegium-like system for constitutional bodies, including election commissioners, it said.

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“Democracy is a basic structure of the Constitution. There is no debate about that. We also cannot tell Parliament to do something and we will not do that. We just want to do something about the issue that has been raised since 1990. The situation on the ground is alarming. We know that there will be opposition from the ruling party to not allow us to go past the present system,” the bench said.

Short tenures

The top court also pointed to the Centre’s repeated move of cutting down on tenures of CECs. It said that no CEC since 2004 has completed a six-year tenure as mandated under The Chief Election Commissioner and Other Election Commissioners (Conditions Of Service) Act, 1991. The UPA government appointed six CECs during its 10-year rule while the NDA has appointed eight in its eight years in power.

Also read: In memory of Seshan: Politicians remember a fair election commissioner

“The government is giving such a truncated tenure to the ECs and CECs that they are doing its bidding,” the apex court observed.

It added that the court cannot say it is helpless and cannot do anything and there needs to be a system that is different from the present structure of appointment of ECs and CECs.

The bench went on to raise the bar stating that it would like to see in the top post someone like TN Seshan, the former chief election commissioner who fearlessly took on officials and political parties over electoral malpractices to ensure fair and free elections in the country during his trail-blazing six-year stint between 1990 and 1996.

“There have been numerous CECs and TN Seshan happens once in a while. We do not want anyone to bulldoze him. Enormous power has been vested on the fragile shoulder of three men (two ECs and the CEC),” it said.

For the appointment of a person who would take no nonsense, the top court said the least intrusive will be a system where the CJI is part of the appointment committee.

“We have to find the best man for the post of CEC. The question is how do we find that best man and how to appoint that best man,” the bench said.

“Each ruling political party at 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 said.