Notwithstanding center’s opposition to Supreme Court’s over reach to executive and power of legislation, apex court verdict about process of appointment of chief election commissioner (CEC) and commissioners may lead to transparent system to appoint these constitutional functionaries. It would lead to creating an independent institution and restore its credibility which has gone to lowest ebb during successive Congress and NDA governments in Delhi.
In a historical judgment, the apex Court ruled that there will be a three-member committee to appoint CEC and commissioners comprising prime minister, chief Justice of India and opposition leader in the parliament, which has been widely hailed in the country.
Centre’s stand on this issue
The government argued that “in the absence of such a law, the President has the constitutional power.” Solicitor General remarked that the government has essentially requested the court to exhibit judicial restraint. The court has discussed in its ruling its intention to “maintain a delicate balance” on separation of powers.
But the center feels that while it is true that, ordinarily, the court cannot, without anything more, usurp what is purely a legislative power or function, in the context of the Constitution, which clothes the citizens with Fundamental Rights and provides for constitutional goals to be achieved. The element of inertia of the Legislature produces a clear situation wherever there exists a veritable gap or a vacuum.
The Supreme Court may not shy away from what essentially would be part of its judicial function. Earlier, ruling cites past instances of the Court stepping into to fill a gap in the law which include the Vishaka guidelines to curb sexual harassment at workplace and the interpretation on the process of appointment of judges. But the court was not impressed with the argument which is reflected in its verdict.
People expect Seshan’s daredevil spirit
People of India will always remember the late former CEC, Terunellai Naryan Iyer Seshan (December 12, 1990 – December 11, 1996.) who was a dare devil and created a scare amongst the bureaucrats and governments at centre and states as he did not spare anyone.
With new reforms and courtesy of the apex court, there is optimism about the new CEC who will follow the ideals of Seshan to restore the credibility of this institution. Experts say that unlike Seshan, a tough taskmaster, most of the people who succeeded him were perceived as “pliable officials” toeing the line of the party in power – for obvious benefits.
Seshan used to ‘terrorise’ the political class by his mercurial temperament thereby strictly adhering to the rules which made him a difficult man for political parties to “handle”.
It may be recalled that the election commission of India allowed all political parties to hold huge rallies, putting the lives of hundreds of thousands in danger. Coronavirus was killing close to 3000 people a day.
This inexplicable decision, going against the advice of the medical and health practitioners was questioned by everyone.
At this juncture, Madras High Court had to intervene and its scathing observations had earned applause from common people when it said “as to why murder charges should not be framed against EC officials which is a telling commentary on EC functioning?”
People in India had praised the then Madras High Court, Chief Justice Sanjib Banerjee and Justice Senthil Kumar Ramamoorthy squarely blamed the EC for a spike in Covid19 cases as it allowed all parties to flout Covid norms.
Future implications of the judgement
Legal experts opine that Supreme Court verdict will pave the way for creation of a transparent system of selection which had been at the lowest ebb during successive governments of Congress and NDA at the centre as bureaucrats loyal to regime of the day were appointed as CEC and members who dutifully always toed the line of ruling party.
Second, presence of chief justice of India will make the process immune from appointing ‘undeserving and incompetent’ personalities which will create a high level of confidence in the mind of people in India. Third, CEC and commissioners will not succumb to pressure from the ruling party as they will not be scared of getting easily removed or suspended at the behest of the government.
Fourth, if differences cropped up between PM and LOP then CJI will be expected to side with the merit and dignity of the candidates. Fifth, Supreme Court’s dignity in the eyes of people has gone sky high with this historical verdict as election commission of India had become an extension of the government and even dates for parliamentary and states polls were fixed as per ‘convenience’ of party in power.
Everyone knows that one of the former chief election commissioners had allowed campaigning during Covid19 in West Bengal to politically help ruling party but in vain as Mamata Banerjee stormed back to power. It is learnt that his name was later recommended for governorship of Goa after retirement though it did not materialise. Finally, it will checkmate the centre to appoint loyalists and puppets as CEC and commissioners who have been trying to prove themselves “more loyal than king.”
Appointing a loyalist
In one of the hearings last year, the Supreme Court had questioned the undue hurry of appointing Arun Goel as election commissioner with electrifying speed as his file was cleared then signed by the president of India within 24 hours. Justice K.M. Joseph had observed in Nov last year that Prime Minister had recommended the name of Goel on the very day when he made a request for voluntary retirement which was accepted the same day thereby waiving off three months required for fulfilment of laid procedure. Justice Joseph, who authored the judgment, observed “not coming as a surprise, the appointment of new election commissioner which was also notified same day hence bench is little mystified as to how the officer had applied for voluntary retirement on same day if he was not in the know about the proposal to appoint him.”
Former cecs hail the verdict
Former CEC, S.Y. Quraishi described the SC verdict as meaningful and logical as it would add to the trust and credibility of the election commission. Quraishi who remained CEC from July 30,2010 to June, 2012, said: “I would have loved to be appointed by the panel of PM, CJI and LOP. The inclusion of LOP will now create an impression that even opposition agrees to the appointment of CEC and commissioners.”
Similarly, Manohar Singh Gill who served as CEC for six years between 1996 to 2001 felt that SC has delivered a very good order which was desired by everyone a long ago as appointments will be fairer now. The PM appoints CEC hence anyone can be given the top slot which has been done by Congress and BJP thereby creating imbalance and it has been made balanced by SC. He said, “Chief justice of India will decide if differences crop up between PM and LOP which add to the credibility of the decision.”
Analysts feel that the apex court verdict has been widely hailed by people in the country as there is a ray of hope that a fearless, independent and impartial poll body will be revived in future which will ensure free and fair parliamentary and assembly elections.
(K S KOMAR is political analyst and national columnist)
Disclaimer: The views and opinions expressed in this article are the personal opinions of the author.
The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.