The Solicitor General for India Tushar Mehta, while responding to the recommendation made by the Petitioners that the Chief Justice of India should be a part of the body that appoints members to the Election Commission, submitted before the court that, "A presupposition that only with the presence of the judiciary, independence and fairness will be achieved, that is an incorrect reading of the constitution. Mere presence of someone from judiciary will ensure transparency is wrong reading and fallacious."
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.
The Attorney General for India Senior Advocate R Venkatramani started his submissions today and said, "I will call 1991 a watershed moment when the Act was enacted. Post the Dinesh Goswami report, the Parliament has applied its mind and then enacted a statute. Now Post 1991, even after Parliament's application of mind if something has not been addressed then it need not be gone into by this court."
He however pointed out that "if there is an abuse or a matter of concern in the application of the Act then the court may go into it. The reason why I am pointing this out is because the court can only interfere when there is an actual situation when something like that has happened. When there is an actual demonstration in a given case."
He further submitted that there was no trigger point in the instant case that called for the court's interference at all. He said, "In my complete understanding I have not been able to see a trigger point for this evaluation or analysis by the court. What is happening here is that there are some reports and that the court wants to say, look into these reports. But there needs to be a trigger point for the court to interfere. That trigger point should arouse the anxiety and the concern of the court. The present case does not show any error or any problem. There is no demonstration and mere anxiety can not be for the court to consider."
Answering to the two aspects raised by the bench in the previous hearing(regarding ECs having short tenures) the AG replied by stating, "We need to look at an individual's complete tenure in the Election body and not just as CEC. We have presented all these data. That tenure has been 5 years across the board except 2-3 isolated instances. So therefore the point is that there has been no problem with the security of tenure. The permutations and combinations in terms of how many years does one be a CEC does not necessarily show tenurial insecurity."
The court also spent a good part of the day today understanding the present system and mechanism adopted for appointment of Election Commissioners. The AG submitted "It is done on the basis of convention. There is no separate appointment procedure of CEC. One is appointed as EC and then on the basis of seniority a CEC."
Justice Joseph then remarked, "This is important because the appointment then must be scanned at the stage of the EC and not the CEC."
AG replied and said "The convention is that all senior bureaucrats and officers at the state and the central government are taken into consideration while appointment. This is scrupulously followed."
He further submitted, "Mandamus is a right enforcing writ and not a right creating writ. Here this is a case of the former."
Additional Solicitor General Balbir Singh appearing for the Union of India also submitted before the Court that the instant case was different from the Vineet Narain and Visakha cases because in those cases there was a clear void, a vacuum to be filled by the Court. There was a trigger point. In the instant case there is no trigger point. He submitted that no evidence of partiality or unconstitutionality has been demonstrated before this court by the petitioners. Neither is the independence in dispute. Therefore, he finally submitted that reports cannot be made a basis for issuing a Writ of Mandamus.
Solicitor General Tushar Mehta appearing for the Union also submitted before the court and said "In Article 324 there is a function and that has to be exercised by the President unless Parliament gives it to some other authority according to 53(3)(b). There is a system of separation of powers. Now one cannot get into one another's powers."
On the question of inclusion of CJI in the appointing process, Mr. Mehta submitted, "There is an impression which has been made out that some outsider's presence has to be in the appointing body who is not a part of the executive. That will mean rewriting the Constitution. That will mean conferring someone else with power because the executive cannot dispense a function which has been conferred upon it. That is against the very concept of democracy."
At this point, Justice Joseph intervened and said, "CJI is involved in the appointment of CBI director. Where is the threat to democracy there? Our courts have given judgments and that has been accepted by the Executive."
Mr. Mehta further pointed out, "As a constitutional proposition, the executive independence and the judiciary's independence are equally sacrosanct. The doctrine of separation of powers stems from Article 14 - all three organs are equal in the eyes of the Constitution. In a presupposition that only with the presence of the judiciary, independence and fairness will be achieved, that is an incorrect reading of the constitution. Mere presence of someone from judiciary will ensure transparency is wrong reading and fallacious. If there is need of law then your lordships can suggest to the Parliament. Court cannot issue mandamus. Court can't do something that the Parliament is supposed to. In the absence of a law, the court can't say this is the law and so therefore you follow it until there is law"
Responding to the submissions of the Government, Advocate Prashant Bhushan responded by saying that there were several trigger points of partiality practiced by the Election Commission that have been documented from time to time. He also mentioned that the biggest trigger was that there was no law dealing with the subject when the COnstitution itself envisions a law under 324(2). He said, "there are reports that show atleast 50 occasions when the independence has not been there. The reason why they don't behave independently is because they are appointed by these people. Now to presume that these recommendations are in the air is flawed."
Mr. Bhushan remarked, "It is good to keep our minds open but not so open that our brains fall out."
Senior AdvocateGopal Sankaranarayan representing the Petitioners will present his submissions tomorrow.
On the aspect of inclusion of CJI in the selection process, Justice Joseph remarked, "We need to understand from you what will his role be? Can we eclipse the role of Council of Ministers. We cannot send the CJI in a situation that his recommendation dies when sent to the Council of Ministers." Justice Joseph pointed out that as per Article 324, it is the President who appoints the ECs. It means, the President acting on the advise of the Council of Ministers. So, it can lead to a situation where the Council of Ministers sitting in judgment over a recommendation made by the CJI.
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.