A Constitution Bench of the Supreme Court today reserved judgment in petitions seeking an independent mechanism to appoint Election Commissioners. It has asked the parties to file brief notes, not exceeding 6 pages, within 5 days.
Senior Advocate Gopal Sankaranarayanan appearing for the Petitioner submitted that till today, Central Government has not appointed anyone who gets the prescribed 6 years tenure as the Election Commissioner (65 years upper age limit to hold the office). This, as per the Petitioners, keeps the EC on a leash and affects the independence of the institution.
"How do you curtail someone from getting 6 years when the Constitution says it? EC has now become a cadre from the bureaucrat. That there are seniority basis on which people are appointed. The law is completely different. Parliament has said you need to ensure 6 years. That is for security of tenure. You put in a man for 6 months. It doesn't seem to us that this institution can remain independent or remain secure," Sankaranarayanan argued.
He urged that appointment of Election Commissioner and Chief Election Commissioner must be through a visible and clear process which has no arbitrariness, to ensure the independence of the Election Commission. He said the bench can fill up this vacuum. "There is immense vacuum. No law. If the independence of the EC is crucial for democracy, then even a perception shouldn't arise. System should seem to be reasonably independent...Let me draw a parallel with the judiciary. The court found a vacuum and filled it up. Now if it is in the EC then that should also be filled up."
Attorney General for India R Venkataramani however submitted that such a course cannot be adopted unless there is trigger point. "Here there is no trigger point. Gaps cannot be imputed in an abstract way...There is a process (for appointment). There is a convention. There is a method."
However, Sankaranarayanan said there are several judgments where the Court has involved itself into the analysis and rolled out guidelines without their being a trigger point necessarily.
During the course of hearing, Justice Roy asked Sankaranarayanan whether a person can continue the continue even after attaining 65 years (upper limit) of age suppose, to fulfill the 6 years tenure requirement.
He responded that as per the database maintained by the DoPT, there are people from younger batches who could have been appointed.
Yesterday, the Court had sought the files related to the recent appointment of Arun Goel, a former bureaucrat, as the Election Commissioner on November 19.
Justice Joseph then pointed that even among the 4 names that were shortlisted, the government selected names of people who will not get even 6 years as Election Commissioner. "You are required to pick up people who should get 6 years as EC. Now you haven't picked up such people who will get ordinary period of 6 years as EC either." This is a violation of Section 6 of the Chief Election Commissioner & Other Election Commissioners (Conditions of Service) Act, 1991, he said today.
Case Title: Anoop Baranwal v. Union of India | WP(C) No. 104/2015