SC refers to 5-judge bench plea seeking collegium like system for appointment of CEC, ECs

New Delhi: The Supreme Court on Tuesday referred to a five-judge Constitution Bench the PIL seeking collegium-like system for selection of the Chief Election Commissioner (CEC) and the ECs to ensure institutional integrity of the poll panel and fair elections in the country.

A bench headed by Chief Justice Ranjan Gogoi considered the submissions and counter arguments of lawyer Prashant Bhushan, appearing for the PIL petitioner and Attorney General K K Venugopal, respectively, before referring the plea for authoritative adjudication by a Constitution bench. The bench, also comprising Justice S K Kaul, said the PIL, filed in 2015 by one Anoop Baranwal, required “close look” and “interpretation” of Article 324 (superintendence, direction and control of election to be vested in Election Commission) of the Constitution.

“The matter relates to what the petitioner perceives to be a requirement of having a full-proof and better system of appointment of members of the Election Commission. …we are of the view that the matter may require a close look and interpretation of the provisions of Article 324 of the Constitution,” the bench said.

It said the issue has not been debated and answered by this court earlier and exercised the power under Article 145 (3) of the Constitution which says that substantial question of law and the question of interpretation of constitutional schemes may be referred to a larger bench. “We, accordingly, refer the question arising in the present proceedings to a Constitution Bench for an authoritative pronouncement,” it said. At the outset, Bhushan said there was the need of having “transparent and independent” selection process to appoint the CEC and the ECs to ensure that democracy and institutional integrity of the poll panel can be safeguarded.

He also said the poll panel itself had said that there was the need to have a collegium system of selection process for the CEC and the ECs. As per  Article 324(2) of the Constitution, a law has to be made by Parliament on the issue of appointment of Election Commissioners, he said, adding that so far, no such legislation has been made. Article 324(2) reads: “The Election Commission shall consist of the Chief Election Commissioner and such numbers of other Election Commissioners, if any, as the President may from time to time fix and appointment of the CEC and other ECs shall, subject to provisions of any law made in that behalf by Parliament, be made by the President.”

Bhushan said: “Politicians talk about the independence of the poll panel when they are in opposition, but they do not support it when they come back to power.”     Referring to the gaps in law, he said that the apex court can always step in and lay down guidelines to fill up the voids as has been done in the Visakha case where directions were issued to deal with sexual harassment of women at work places. Venugopal, on the other hand, opposed the plea saying that so far, there have been no allegations of abuse of power whatsoever against any Chief Election Commissioner and persons of impeccable integrity have been appouinted to the office.

The top law officer also referred to the names of former CECs like T N Sheshan, J M Lynddoh, N Gopalaswamy and S L Shakdhar to highlight the fact that appointments to the post of have been fair and they had acted with all fairness and independence. “We do not think we need to go into this aspect. We need to look into the law and rules,” the bench said. Venugopal also referred to the appointment of judges in higher judiciary and said the apex court, by judicial pronouncements, came out with the collegium system. Article 124 says that the President shall appoint the judges with the consultation of the judges, he said, adding that despite this, the collegium system came in.

Venugopal said that a similar yardstick should be applied for appointments to other constitutional posts. After brief hearing, the bench referred the case to the five-judge Constitution bench and said that the CJI, in administrative side, would fix the date of hearing. In 2017, a bench headed by the then CJI J S Khehar had asked the Centre as to why no enabling law as mandated under the Constitution for the appointment of the CEC and ECs has been framed. The bench, however, had acknowledged that the appointments of Election Commissioners had been “very, very fair and politically neutral”.

The Centre had said that none other than the Prime Minister was involved in the selection of the Election Commissioners and moreover, it was for Parliament to decide whether there should be a law or not. The PIL has said that a direction should be issued for making the law to ensure a “fair, just and transparent process of selection by constituting a neutral and independent selection committee to recommend the name for the appointment of the members of the Election Commission”. The plea said that successive governments have not acted and did not set up a “fair, just and transparent process” for selection of election commissioners. It said the appointments have been made by the President on the basis of the advice given by the Prime Minister and the Council of Ministers.

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