An Election Commissioner can be proficient, competent, completely honest and armed with an outstanding record of service, but he may have a definite political leaning which may end up displaying itself in office, a Constitution Bench of the Supreme Court said on Thursday.
Justice K.M. Joseph, leading a five-judge Bench, referred to how the 10th Chief Election Commissioner T.N. Seshan had managed to clean up the electoral system. Justice Joseph said Mr. Seshan merely had put in place a set of rules which reduced human discretion to the minimum. In such a scenario, Election Commissioners hardly need to fear pressure from any political party or government. Further, the Election Commission, as an institution, would maintain functional independence and institutional integrity, be what the political leaning, attitude or competence of individual Commissioners may be.
“The Election Commission of India is perhaps the envy of the world. Perhaps one institution which has come in for a lot of compliments, largely due to the reforms of T.N. Seshan. He had succeeded in putting in place a lot of rules to reduce human discretion to the minimum. By doing this, he eliminated fear. That is, the Election Commissioners just had to follow the rules and did not have to bother about coming under pressure from any political party,” Justice Joseph observed orally.
The Bench is examining a series of petitions seeking functional independence for Election Commissioners. They have sought an “independent, neutral mechanism” for their appointment, outside the control of the government. The Election Commissioners should have the same level of protection from removal as the Chief Election Commissioner (CEC). The CEC, like an apex court judge, can be removed from office only through a special majority of the Parliament whereas the Election Commissioners depend on the “pleasure” of the President to stay in office.
Advocate Prashant Bhushan, for petitioner Anoop Baranwal, argued that a neutral, high-level body, even excluding the Prime Minister and the Opposition Leader, should select the Election Commissioners.
“Such a body could even be a collegium of Supreme Court judges,” Mr. Bhushan endeavoured.
Justice Ajay Rastogi, on the Bench, said exercise of human discretion in decision-making, even for Election Commissioners, was unavoidable. “Somewhere down the line, you have to show your trust in the person manning the course,” Justice Rastogi said.
Senior advocate Gopal Sankaranarayanan, for petitioner Ashwini Kumar Upadhyay, said the need of the hour is to insulate the Election Commission from political influence. He referred to a catena of Supreme Court judgments which upheld the functional independence of the CBI and the Central Vigilance Commission. He slightly varied from Mr. Bhushan to argue that the same high-level selection committee of the Prime Minister, Chief Justice of India and Opposition Leader used in the appointment process of CBI Director and Chief Vigilance Commissioner could be employed for selecting Election Commissioners for appointment.
But Justice Joseph pointed out that even such a committee may have only the annual confidential reports of the candidates. “Will there be any material or anything which has to do with his definite political leanings? Ultimately the man may be completely honest, every which way. But will all that be sufficient to ensure that if he is appointed Election Commissioner, he will not end up displaying his political leanings? How do we ensure persons who are above political biases are appointed?” Justice Joseph asked.
“Absolutely no assurance of that… We cannot have that assurance even from the Supreme Court Collegium…” Mr. Sankaranarayanan replied.
Justice Joseph explained that proficiency and competence was different from independence. They should not conflict with each other. “The reason that a Supreme Court judge is able to do things that he can do is that he is insulated from pressure… a Supreme Court judge cannot be thrown out, whether they want to or not. There is an elaborate procedure involved,” Justice Joseph said.