A five-judge Constitution bench of Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, which is hearing a batch of petitions seeking that an “independent selection panel” be given the task to finalise appointment in the Election Commission, said that human discretion is bound to be there in any decision but it can be minimised by setting rules and selection criteria.
Article 324(2) says: The Election Commission shall consist of the CEC and such number of other ECs, if any, as the President may from time to time fix and the appointment of CEC and other ECs shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
Impressing upon the court not to interfere, attorney general R Venkataramani told the bench that a wrong impression has been created that there is some kind of vacuum which is to be filled by judicial pronouncement. He said it is a constitutional policy matter and interfering with it amounts to a constitutional amendment which should be done by the Parliament.
The bench thereafter posed a question to the attorney general and said, “Have you taken any step for deciding procedure as per Article 324(2)? You can follow your own mechanism but you have not come out with any mechanism.” Challenging the constitutionality of the present appointment process, advocate Prashant Bhushan contended that appointments were being done as per the whims and fancies of the executive and pleaded for creation of an independent collegium or selection committee for future appointments of the CEC and the two other ECs.
Bhushan, appearing for the Association for Democratic Reforms (ADR), said that unlike the appointments of the CBI director or Lokpal, where the leader of Opposition and the judiciary have a say, the Centre unilaterally appoints the members of the Election Commission. “The petition asserts that Article 324(2) mandates Parliament to enact a just, fair and reasonable law relating to the appointment of the CEC and ECs, and regrets that this has not been done… Presently, the appointment is done solely by the executive. The impugned practice is incompatible with Article 324(2) and is manifestly arbitrary,” Bhushan said.
The hearing remained inconclusive and would resume on Tuesday.