Neutral Body To Appoint Election Commissioner | "Presence Of The Chief Justice In The Appointment Committee Would Be The Best System":Justice Joseph

"The least intrusive and best system would be that there is a presence of the Chief Justice in the appointment committee. We feel that his very presence will be a message that no mess up can happen", the Supreme Court considered on Tuesday while hearing the submission of Attorney General for India R Venkatramani. A 5 judge Constitutional bench headed by Justice KM Joseph and comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravi Kumar are hearing a batch of petitions recommending reforms in the process of appointment of members of the Election Commission of India. Attorney General for India Senior Advocate R Venkatramani, appearing for the Union of India, started his submissions on Tuesday by first delving into the role of Constitutional Courts across the world. He then came to discuss the powers of Constitutional Courts India and their inherent limitations based on the Montesquian principle of Separation of Powers which is also a part of the Indian Constitutional Scheme. At this point, Justice Joseph interrupted the AG and said that the bench wanted to point out two aspects to him before proceeding with his submissions. Pointing out the first aspect Justice Joseph said, "The phenomenon is that from 2007 till now CEC's have had very short tenures. Around 2 years and many even less than that. The question is this. Under the 1991 Act the term of CEC used to be 6 years. However, the proviso said that if he attains 65 years of age, he would retire before the completion of that period. So, what the government has been doing is that because it knows the DOB, it ensures that one who is appointed does not get his full 6 years. So, the independence gets thwarted here. We want answers on this from you. 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." Referring to the second aspect, Justice Joseph pointed out, "We are going to so many courts across the world. But let's also look at countries nearby" After which, Justice Joseph went on to point out the stringent safeguards with which Election Commissioners are appointed in nearby countries like Sri lanka, Nepal, Bangladesh and Pakistan. Justice Joseph then said, "We wanted to point this out before you because there is now law here. Silences of the Constitution is being exploited by all. They (the Executive) have used it to their interest." The AG replied to the above by stating that the Court will have to understand the way the Authority perceives its duty. He further pointed out "One set principle is that the original feature of the Constitution cannot be challenged. Matters that are open for scrutiny by this court are ones that violate fundamental rights. The court can enhance the provision but when it comes to striking an original provision of the Constitution, that is for parliament to debate and not the court… That distinction needs to be finely understood." Pointing to the Constituent Assembly Debates, AG R Venkatramani further pointed out to the court that the Assembly had considered several proposals. "This is important because if the Assembly had proposals before it and did not consider it then that should be considered by this court. So if the Constitution takes a certain view despite several proposals before the original Constituent Assembly then that cannot be challenged. Challenge can only be on experience. This experience should be so seriously damaging and shocking that the court shall engage itself and show a more suitable course of action." The Attorney General for India also further submitted before the court that there are several provisions in the Constitution where the Parliament has been entrusted with the responsibility of contemplating enacting a statute. However, he stated that such a task is for the Parliament to dispense at its own discretion and not for the courts to decide on behalf of the Parliament. He said, "When a provision of law is unable to serve it's purpose for some reason or the other, it can be said there is a vacuum in law. If this Hon'ble Court is engaged and finds that a purpose of a law is not realised, it shall embark upon the journey to see into it. However, aspirational and idealised aspects cannot lead to striking a provision of the Constitution… My lords it is important to point this out that a vacuum cannot be imagined merely because a law is not in place. The Parliament can at times be slow in its approach." At this point Justice Roy remarked "You said that we should go slowly. We know you have a flair for literature. They say, make haste slowly. It's been 72 years." On the aspect of several reports recommending for electoral reforms, the AG stated that all of these reports are vague and none of them go beyond asking for reforms. He said "generality of recommendations cannot be a ...

Neutral Body To Appoint Election Commissioner | "Presence Of The Chief Justice In The Appointment Committee Would Be The Best System":Justice Joseph

Anurag Tiwary

Tags