Absence of law for appointment of ECs, CECs disturbing, says SC

New Delhi: The Supreme Court on Tuesday termed the exploitation of the "silence of the Constitution" and the absence of a law governing the appointments of election commissioners and chief election commissioners a "disturbing trend".

The court flagged Article 324 of the Constitution, which talks about the appointment of election commissioners, and said it does not provide the procedure for such appointments. Moreover, it had envisaged the enactment of a law by Parliament in this regard, which has not been done in the last 72 years, leading to exploitation by the Centre, it said.

The court pointed out that since 2004, no chief election commissioner has completed the six-year tenure and during the 10-year rule of the UPA government, there were six CECs and in the eight years of the NDA government, there have been eight CECs.

A five-judge Constitution bench headed by Justice K M Joseph said, "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 top court is hearing a batch of pleas seeking a collegium-like system for the appointment of the CEC.

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. 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, who appeared in the matter on behalf of the Centre.

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.