"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 trigger point".
He further submitted that the reports that actually do give a recommendation have to be seen if they have followed any evaluative criteria or have done a survey or any analysis to come to that conclusion.
He submitted before the court that all this is for the Parliament and the Executive to consider and if necessary debate and enact a law. He stated "The Constitution does not imagine a situation that a law needs to be necessarily made. Such issues that are for parliament to consider cannot be made a subject matter for a writ of mandamus. It is important to point out these reports. If the court finds wisdom in law commission reports or other reports and issues a writ of mandamus, then it will again call for repeated judicial interventions."
Justice Joseph, at this point stated to the AG that "Dr. Ambedkar also pointed out that this provision is going to be the biggest headache for future generations. He foresaw this. We cannot be looking at this simplistically therefore as you seem to be pointing out. Because it involves an extremely important aspect - Democracy. We need to see if the provision needs to be enhanced. What we have pointed out to you at the start is important. You are giving such a truncated office to the CEC that he is bidding for you. This percolates down to the fundamental rights of the individual."
The bench repeatedly pointed out to the AG that the petition demands attention of the court because this involves a serious issue of free and fair elections. It pointed out that the court was not analysing the power of appointments but only the manner of exercise of power and that lay within the powers of judicial review under Article 32.
When the matter continued post lunch, Advocate Prashant Bhushan pointed out to the bench that the prayers of the petitioners in the instant case was on the lines of what had been prayed for in Prakash Singh as well as Vineet Narain case. He said that in both those cases, this court intervened and exercised judicial review. So therefore there was no point of the petition not being maintainable.
At this point the bench started to contemplate on how the appointment should actually take place for the best man to be appointed as the Election Commissioner. Justice Joseph remarked, "You see apart from competence, what is important is you need someone with character. Who does not allow himself to be bulldozed. So the point is who will appoint this person. The least intrusive is that there is a system when 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 will happen. We need the best man. And there shouldn't be any disagreement on that. Even judges have prejudices. But, atleast you can expect that there will be neutrality."
In the last hearing, the bench had commenced hearing on the batch of petitions and had contemplated on how to get someone who was above politics.
The matter was referred to the Constitutional Bench after a Division Bench of the Apex Court was of the view that 'a close look and interpretation of the provisions of Article 324 of the Constitution of India', which states superintendence, direction and control of elections to be vested in the Election Commission, may be required.
The matter will now be heard tomorrow i.e. 23rd November when the Attorney General is expected to conclude his submissions.
Case Title: Anoop Baranwal v. Union of India | WP(C) No. 104/2015