On the independence of India’s prime ballot physique, the Supreme Court at the moment had a pointed “hypothesis” for the central authorities: “Do you think the Election Commissioner… if he’s asked to take on none less than the Prime Minister — it’s just an example — and he doesn’t come around to doing it: Will it not be a case of complete breakdown of the system?”

It said the Election Commission is “supposed to be completely insulated”, and referred to how the government had spoken of appointing a “man of character”. “Character consists of various components… one particular characteristic required is independence,” it noted.

It then cited how “one of the Election Commissioners, in fact, resigned”. The court docket didn’t take names, relatively arguing its central level that the appointment system requires “a bigger physique” than just the union cabinet to decide on names. “There is a dire want for change.”

At present the poll body has one chief and two other commissioners, picked from the civil services.  

On most recent appointment, of Arun Goel 

Later, the court also asked the Centre to produce the file related to the appointment of Election Commissioner Arun Goel to check for any “hanky panky” as he was only recently given voluntary retirement from service. Advocate Prashant Bhushan, appearing for one of the petitioners, had urged the court to look specifically into it.

In asking for the file, the court rejected the government’s objection that since the court is dealing with the wider issue of appointment process, it could not look at an individual case. The bench said it started hearing the matter last Thursday and Mr Goel’s appointment was made after that, on November 19; therefore, it wants to see what prompted the step.

The five-judge Constitution bench headed by Justice KM Joseph has been hearing petitions seeking reforms in the system of appointing election commissioners. It has said “every government appoints a yes man” as the poll body chief, “no matter the celebration [in power]”.

The court has already flagged how Article 324 of the Constitution, which talks about appointment of election commissioners, does not provide the procedure for it. This Article speaks of enactment of a law by Parliament to define the process, but that’s not been done in the last 72 years.

Government says no one can ‘go rogue’

The government’s lawyer submitted, “Stray instances cannot be the grounds for the court to interfere. To safeguard the position is our endeavour.”

“First an inventory is ready of all senior bureaucrats. And then the listing is shipped to the Law Ministry which is then forwarded to the PM,” the lawyer explained, and said, “We must see to what extent the court docket can get into this course of. The present system is working superb and there’s no set off level for the court docket to intervene on this case.”

The court stressed that it wasn’t saying the system is not correct. “There should be a transparent mechanism,” it added. 

The court also took exception to the Centre’s submission that the appointments are “always based on seniority” and that the tenure is “mostly 5 years”.

When the court asked why the pool of candidates is “confined to simply civil servants”, the government replied, “That’s the conference. How can we not observe it ? Can we herald a nationwide ballot of candidates? It’s inconceivable.”

The government lawyer added, “The court docket can not intervene within the system solely as a result of we can not present each single file how the appointment was finished. You want to point out cases whereby some unsuitable has occurred. Merely on chance, apprehension or anxiousness, interference from the court docket is not known as for.”

Also citing the sheer scale of the system, the government contended, “The entire mechanism does not allow that someone may go rogue.”

‘Someone like TN Seshan’

The court docket, which yesterday stated there should a Chief Election Commissioner like TN Seshan — recognized for aggressive electoral reforms from 1990 to 1996 — has been insisting on a “mechanism” for the poll body appointments. The government has cited a 1991 law and past conventions of appointment recommended by the PM-led cabinet to the President, who then picks an officer.

The Centre has strongly opposed the pleas that seek a collegium-like system — such as senior-most judges appointing judges — for the selection of election commissioners. Any such attempt will amount to amending the Constitution, the government has argued.

The court, however, has pointed out that since 2004, no CEC has completed a six-year tenure. During the 10-year rule of the UPA, there were six CECs; and in the eight years of the NDA, there have been eight. “The authorities is giving such a truncated tenure to the ECs and CECs that they’re doing its bidding,” the court docket has stated.