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‘Silence of the Constitution’ being exploited: SC on appointment of CEC, ECs

New Delhi, November 22

The Supreme Court on Tuesday questioned the Centre on the absence of a law to govern the appointment of Chief Election Commissioner (CEC) and Election Commissioners (ECs), sayingsaid “silence of the Constitution” was being exploited by successive governments.

Terming it a “disturbing trend”, a five-judge Constitution Bench led by Justice KM Joseph pointed out that since 2004, no CEC has completed the six-year tenure.

“In 10 years of the UPA government, they had six CECs and in the present NDA government, in nearly eight years, it has had eight CECs. This is a disturbing trend as far as our country is concerned. There are no checks and balances in the Constitution. This is how the silence of the Constitution is being exploited. There is no law and legally, they are correct. Nothing could be done in the absence of a law,” the Bench said.

The Bench – which also included Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice CT Ravikumar was hearing petitions seeking a Collegium-like system for the appointment of the CEC and ECs referred to it in 2018. Last week, the Centre had vehemently opposed it, saying any such attempt will amount to amending the Constitution.

“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. 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,” the Bench told Attorney General R Venkataramani.

The Bench pointed out that Article 324 of the Constitution talks about the appointment of CEC and ECs but it does not provide for the procedure for such appointments and it left it to Parliament to enact a law for the purpose. But it has not been done in the last 72 years, leading to exploitation by the Centre, it said.

“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 would 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,” the Bench said.

If it’s part of the basic structure of the Constitution, then it’s important for the court to go into the analysis, Justice Joseph told the AG.

Defending the present system under which the President appoints the CEC and ECs, Venkataramani said the top court cannot interfere and strike it down unless the connection between the fundamental rights of citizens and the appointment of CEC and ECs was established.

“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,” the AG said.

Venkataramani would explain on Wednesday the mechanism followed by the government in the appointment of CEC and ECs.

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