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Reacting to the appointment of serving bureaucrats as Chief Election Commissioner (CEC) and Election Commissioners (EC), legal experts said that appointments to constitutional posts is a fundamental principle of good governance.
The Supreme Court on Wednesday told the Centre to produce on November 24 the files related to the appointment of former IAS officer Arun Goel as the new Election Commissioner.
While transparency in the process of appointments on constitutional post, be it judiciary or executive, is the fundamental principle of good governance, more important is strong character of these appointees to discharge their duties and obligations to uphold the constitutional principles and not as per dictates of the government of the day. Under the constitutional scheme appointment of CEC and ECs is function of the executive. By and large, so far, the Election Commission has performed its job well in this largest democracy of the world. As there has been demand for fair and transparent mechanism for appointment in the judiciary, so is the demand for appointment of Election Commissioners too,
Advocate Sumit Gehlot, who appeared in several matters related to Constitutional validity stated that
the appointments of CEC and ECs must be insulated from political interference to prevent manoeuvring in the election process, since they are responsible for smooth and proper functioning of democracy." "For checks and balances, there has to be a fair and transparent mechanism in the appointment of CEC and ECs for free and fair elections in India and to maintain the faith of the Public. A person with strong and impeccable character, through a fair and transparent mechanism should only be appointed as CEC," stated Advocate Sumit Gehlot. Though, Article 324(2) of the Constitution of India mandates the framing of Law for process of selection and appointment of CEC and ECs, however, nothing has been done in this regard. The current system of appointment of CEC and ECs is without any mechanism and totally at the discretion of the Executive, which is prone to biasness. There is a vacuum and there is an urgent requirement to frame the law and to have Permanent measures in place. In exercise of the powers under Article 32 readwith Article 142, guidelines and directions have been issued in a large number of cases by the Hon'ble Supreme Court. Where there is inaction by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field, The Supreme Court has rightly raised concerns regarding the appointment of serving bureaucrats by the centre and opined that it must be "apolitical" and beyond "influence" and it cannot be the only decision of Government and a committee has to be constituted as like for Director of CBI.
Advocate NS Nappinai also shared her view in the matter and stated that
roles of the CEC and EC are meant to be independent bodies as they are intended to assure us of truly democratic processes. Therefore the SC's observation is critical and timely. Transparency, neutrality and autonomy are critical in the role as well as to appointments thereto.
The Supreme Court on Wednesday said that people manning the Election Commission of India should not be the “yes man” of the government but “independent who can act independently” even if it comes to taking on the Prime Minister.
A five-judge Constitution bench headed by Justice KM Joseph emphasised that the appointment of the Chief Electin Commissioner and the Election Commissioners should be “procedure based and transparent”.
In a hypothetical poser to the government, the bench asked
Do you think the Election Commissioner... if he is asked to take on none less than the Prime Minister, it's just example, and he doesn't come around to doing it - will it not be a case of complete breakdown of the system?
The apex court was hearing pleas challenging the constitutionality of the present appointment process of CEC and ECs and contended that appointments were being done as per the whims and fancies of the executive.
The daylong hearing on the third day saw Centre reiterating its argument that the practice of the appointment of CEC and the ECs have worked well in over seven decades and there was no “trigger” pointing to any acts of the poll panel adversely impacting the conduct of free and fair election s in the country, for the court to intervence.
Attorney General R Ventakaramani, Solicitor General Tushar Mehta and senior advocate Balbir Singh appearing for Centre said that if there is no law prescribing the procedure for the appointment of CEC and the ECs, then the “silence of constitution” on this aspect can be addressed by the parliament alone and not by judicial intervention.
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