Neutral Body To Appoint Election Commissioners| "How Do We Get Somebody Who Is Above Politics?": Supreme Court Constitution Bench Commences Hearing

A Constitutional Bench headed by Justice KM Joseph was considering a batch of petitions recommending reform in the process of appointment of members of the Election Commission of India. The Bench also comprised of Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar.

Advocate Prashant Bhushan appearing for the lead petitioner today submitted that Parliament made no law to regulate the appointment of Election Commissioners for the last 70 years. He further stated that just functional independence is not enough to secure proper independence of the ECI.

"Doubts about independence of Election Commission has been raised by the citizens."

Hearing this, Justice Rastogi said,

"We are not examining the ground realities. We are examining whether it is in accordance with Constitution. What is the mechanism as of today, what are your suggestions?"

The Law Commission, Bhushan said, had suggested to have a selection committee comprising of Prime Minister, Leader of Opposition and the Chief Justice of India. But the PM and LOO are all connected with political parties, he added.

"Selection should be by a body which is totally neutral"

He suggested that the Supreme Court Collegium, which recommends the names of Judges to be elevated to the High Courts and Supreme Court is one possibility with regard to appointment of the ECI members. His other suggestion was to have a five-member committee, if not the collegium. According to him, it would immensely reduce arbitrariness.

"The main stakeholders are the political parties. The selection should by a neutral body. First option is what I mentioned earlier. Second option is having a committee of three senior judges, the Chief Election Commissioner and the Chairman of NHRC."

"This would be a neutral body where main stakeholder is not part of the body. Free and Fair elections is the basic structure of a Democracy."

When asked would the Supreme Court judges would know the credentials of the candidates, Bhushan replied positively.

"It is outweighed by the overwhelming advantage that the selection will be neutral. Judges are politically neutral. They are not stakeholders in elections. Neutrality will outweigh..They can consult the government and Leader of Opposition and seek proposals from them. And, they must."

"We may say we are independent, we know the credentials, but still we can't rule out the perception of the common man", Justice Rastogi said.

To avoid this, Bhushan recommended placing certain safeguards to ensure neutrality and transparency. "First, a neutral body for selection. Second, is transparency."

He said that the names of the proposed appointees should be made available to the public. "They may have some vital information about the person. Second best alternative is what the law commission said but the best option is to have a neutral body."

To Senior Advocate Gopal Shankarnarayan, the Bench asked the need for the petitioners to come to the Court at this point.

"Whatever the practise being followed for selection of Chief Election Commissioner, you say no rules framed, no procedure etc. But for last 70 years, this practise is being followed. What necessity has arisen for individuals to come to court with the matter? Either you should say that constitutional mandate is not followed or what's wrong with the procedure."

Shankarnarayan pointed out that of the Judiciary, ECI and Media, only ECI is not void of government interference.

"Two larger Institutions, along with the Media, is important for the functioning of the democracy. Media is independent. Judiciary also is but ECI not given insulation of protection.

Shankarnarayan also said that the Top Court had to step in to ensure that the selection of CVC and CBI director is conducted independently.

"I would propose three-member committee of CJI, LOO and PM", he said.

"Can we guarantee if this committee comes, there will not be any political bias?", Justice Joseph asked.

The senior counsel said that it can never be guaranteed.

"There is no way to ensure that. Can never guarantee that. Even for the collegium, CVC. Your Lordships can see the number of petitions day in and day out."

Pointing out that there's a clear vacuum under Article 324 (2), he submitted that there was nothing in the Constitution on how appointments to the ECI will take place.

"You may have excellent or weak Chief Election Commissioners. But idea is to look at the institutions. To keep away from political vagaries."

He also pointed out the difference in terms of removal of Chief Election Commissioners and Election Commissioners.

"The process for removal for EC vs CEC is different. CEC can pnly be impeached. But, EC can be removed on recommendation of the CEC. ECs should be on par with CEC in terms of process of removal. It's like saying CJI can be impeached, but judges can be removed. I'm just drawing a parallel."

Advocate Kaleeswaram Raj, appearing in an IA, relied on various documents to submit that there is a chronic case in India that the ECI has been favouring the ruling party, irrespective of the party.

He also relied on the positions in other jurisdictions.

"I have also shown position in Canada. There are better models are Spain and South Africa. It's a 13-member commission where 8 members are from the judiciary. There can be a better model here…"

Attorney General R Venkataramani will make submissions on November 22.

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.

Case Status: Anoop Baranwal v. Union of India | WP(C) No. 104/2015]

Click Here To Read/Download Order