Election Commissioners' Appointment| 'Wrong To Assume Presence Of Someone From Judiciary Will Ensure Transparency' : SG Tells Supreme Court

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...

Election Commissioners' Appointment| 'Wrong To Assume Presence Of Someone From Judiciary Will Ensure Transparency' : SG Tells Supreme Court

Anurag Tiwary

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