The bench, also comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, said even though the CEC heads an institution, with his truncated tenure, he cannot do anything substantial.
“Looking at the list of the chief election commissioners since 2004, the majority of them do not have more than two years’ tenure. As per law, they have fixed a tenure of six years or up to the age of 65 years, whichever is earlier,” the bench told Attorney General R Venkataramani, who appeared in the matter on behalf of the Centre. “Most of them were former bureaucrats and the government knew about their age. They were appointed at such a point that they were never able to complete six years and had a truncated tenure.”
Venkataramani said the present process under which the president appoints the CECs and ECs cannot be said to be unconstitutional and the court cannot strike it down.
“The Constituent Assembly, which had different models before it, had adopted this model and now, the court cannot say that the present model needs consideration…. There is no provision of the Constitution in this regard which requires interpretation,” he said.
Justice Joseph said it has been 72 years since the Constitution was adopted but still there is no law on the appointment of election commissioners, despite being envisaged in the Constitution.
“The Constituent Assembly wanted Parliament to enact a law. It has been 72 years since the Constitution was adopted but there is no law. Whichever party comes to power will like to remain in power and there is nothing wrong about it. Ours is a democratic form of polity. Democracy requires change in government through elections periodically. Therefore, purity and transparency are very intricately connected and it is also part of the basic structure,” he said.
Justice Jospeh further told Venkataramani that if it is part of the Constitution’s basic structure, then it is important for the court to go into the analysis.
“Dr B R Amedkar, in the Constituent Assembly debate, pointed out that this Article 324 provision is going to be the biggest headache for the future generation. He foresaw this situation and that is unfortunately happening in this court,” he said.
“The government is giving such a truncated tenure to the ECs and CECs that they are doing its bidding. We are not concerned with this political party or that political party. This percolates down to the fundamental right of the individual,” the judge said.
Venkataramani said if the connection between the fundamental rights of the citizens and the appointment of ECs is shown clearly, then the court can certainly interfere, but if the connection is not clear and not that serious, then the court’s interference is not called for.
He said this court cannot do a repeat of the Vishaka case (a 1997 case in which the apex court laid down the guidelines regarding how to deal with sexual harassment at workplace) or the 1997 case of Vineet Narain versus Union of India (which dealt with the appointment of the CBI director by a committee) as there is no vacuum.
The bench agreed with the submission that there is no vacuum but said the court has held that the right to vote is not per se a fundamental right but is connected to other fundamental rights such as those guaranteed under Article 19 (right to speech and expression) and other rights.
The court asked Venkataramani to apprise it on Wednesday of any mechanism or method that is being followed by the government in the appointment of ECs and CECs.
The hearing remained inconclusive and would continue on Wednesday.
On Nov. 17, the Centre had vehemently opposed the pleas seeking a collegium-like system for the selection of CECs and ECs, contending that any such attempt will amount to amending the Constitution.
On Oct. 23, 2018, the apex court had referred a PIL seeking a collegium-like system for the selection of CECs and ECs to a five-judge Constitution bench for authoritative adjudication.