The Constitutional Bench is sitting to hear on the matter of the process of selection of Election Commissioners. There are multiple Petitions filed which have been clutched together as the SC bench sat down to hear the concerns and in effect, a strong lawyers’ lobby including Prashant Bhushan, an SC lawyer charged a couple of years back with the Contempt of Court, wants the Judiciary to tread into the space of another Constitutional body.
The plea made by Prashant Bhushan, an ex-leader of Arvind Kejriwal’s Aam Aadmi Party and now a collaborator of Rahul Gandhi’s Congress is that not only the Judiciary should look at the appointment of the current Election Commissioner, rather should also become a party to the selection of another constitutional body. This request of Bhushan is made on the premise that while the integrity of the Executive, that is, the parliament cannot be depended on, the Judiciary is above board, and their presence in the hypothetical committee will ensure the right selection. Bhushan who held an extremely derogatory view of the same judiciary until recently when he was reprimanded and charged with contempt, has now become a convert who believes that only the Judiciary is a constitutional body which is honest and above the board.
While the decision is yet to be taken, a request to intervene when there is no incident of irregularity has been presented by the petitioners is strange. If the public statements of one of the SC Judge, Shri K M Joseph is to be considered, it is easy to chance a guess about the direction in which he leans. Recently on the subject, he said that it is not always that we get someone totally neutral as TN Sheshan in the Election. The fact remains while much has been said about the inertness and lack of enthusiasm of previous Election Commissioners, we do not have many cases which could indicate the lack of integrity on the part of the Commission.
Even in the case of Navin Chawla, charged earlier by the Shah Commission which was looking at excesses during the Emergency imposed by the Congress Government, no charge of lack of integrity could stick. Charges against the Judiciary which wants to get into the appointment process, on the ground that it is clean and incorrigible have, on the other hand, been quite common. From the inside, there have been instances like the resignation of Justice HR Khanna when he was superseded at the orders of Indira Gandhi, then PM, for taking an anti-establishment stand.
While as a government officer, an election commissioner is supposed to submit the details of their assets to their organisation, the Judiciary, on the other hand, has been reluctant to do the same. The executive which currently is charged with electing an Election Commissioner has to mandatorily declare the assets of the candidate when it approaches the people every five years to get re-elected. A bill to this effect (The Judges (Declaration of Assets and Liabilities Bill, 2009) was brought in 2009 by the Congress-led UPA Government and presented in Parliament. It was opposed by Late Shri Arun Jaitley, not so much on the idea but the hidden dishonesty of the bill.
The bill, while mandating the Judges to disclose their assets and liabilities, hid within clause 6 of the bill a provision where such disclosures were not to be made public. This was a sharp contrast to the position of the Courts in the Representation of People Act, where they not only mandated the disclosure of assets and liabilities of the contestants in elections but also made public disclosure a part of the fundamental rights of the electorate. While the same Article 19 (1) (a) of the Constitution was used, here for the judges, the disclosures were made exempt from public scrutiny.
The left also opposed it on the ground that it placed the Judges above the constitutional duties and obligations of people holding high offices. Ram Jethmalani also pointed to this exceptionalism and said ‘it creates a suspicion in the public mind that the judiciary is seeking favour from the executive. The favour being that you put us on a higher pedestal than any other public servant in the country. Let other people’s assets be disclosed, but not ours. He further added, brutally, This bill is a conspiracy in corruption. The bill was shelved. In August 2009, however, the Judges in a full court meeting resolved that the assets will be declared and disclosed to the public. In America, all judges have to disclose their assets to the public under The Ethics of Government Act of 1978 and the Judicial Code of Conduct passed in 1995.
In India, Judiciary had gone into a huddle and came out with a resolution in 1997, wherein it was made mandatory for SC Judges to disclose their assets to Chief Justice. As it turned out, it remained mandatory only in name, and much as the cosy elite club called collegium opaquely appointing judges, there was no one to call out this honourable farce of honourable men.
As per a 2021 report on The Leaflet, out of 723 Judges across High Courts and Supreme Court, 105 have declared their assets, at one point or other. The Supreme Court which is hearing the petition casting aspersions on the Elected Executive appointing the Election Commission, has one of the worst records in the matter, with only two out of the thirty-three Judges having disclosed their assets and liabilities (December 2021). This shows how the convention of internal governance has failed for the judiciary itself when it tries to wade into the recruitment of other constitutional bodies. Already the Judges are a part of the appointment panel of the Chief of CBI and Enforcement Directorate. This has not reduced the changes of partisanship made on them. The process of appointment of higher Judiciary through a collegium system is anyway under a cloud.
This matter of the collegium system and its opacity also came up in the debate now happening in the Supreme Court regarding the appointment process of the Election Commission. I have written earlier on the unconstitutionality of the Collegium system and how it is nothing but Judges coming together and taking away the powers which were bestowed on the elected President of India by the makers of our Constitution. In the SC hearing, the Government side quoted another senior SC Lawyer and said this power of the Executive was usurped by the Judiciary.
During the Constituent Assembly debate, on the 15th of June, 1949, the Election Commissions structure was debated and Dr BR Ambedkar placed the Chief Election Commissioner in the equivalent position as a Judges of the Supreme Court, as far as her removability is concerned. Article 289 of the draft Constitution in the Constituent Assembly debate which became Article 324 spoke about the appointment of the Chief Election Commission as to be done by the pleasure of the President, subject to any law made on this behalf by Parliament. The last part was added by Dr Ambedkar when the lack of process and too much fluidity made the framers of the constitution fearful. However, that the elected Parliament shall be officiating over the changes in appointment rules was unambiguously mentioned. In 2012, Sri LK Advani too wrote to the then-PM Dr Manmohan Singh about some sort of collegium system for the appointment of CEC.
Going by the way, how regarding the appointment of judges, Constitution envisaged appointment by President, on the advice of CJI, as the former may deem fit; the recommendatory role of CJI became obligatory to the President and eventually the President herself was turned into a rubber stamp of the Collegium, merely to sign on the decisions of the Collegium. On the question of what the Constitution said about it, the Judges proclaimed that the Constitution is to be interpreted the way we tell you to interpret in the Third Judges Case. Regarding the primacy of CJI on the matter of appointment (over the President) and the Constitutional position on this, the bench declared that the relevant provisions of the Constitution including the constitutional scheme must now be understood and implemented in the manner indicated herein by us. In short, the judiciary told all the members of the Constituent Assembly led by Dr. Ambedkar to go and fly kites.
With so many inglorious chapters in the history of the Judiciary in Independent India, it is incumbent on the Judiciary to clean its act, while allowing the EC to clean up its own as per the will of the people, that is the guidelines laid down by the elected Parliament. The Government took the position that in terms of security of compensation and tenure has been ascertained in 1991, after Dinesh Goswami report. Regarding specific laws to be framed, it was argued that during the CA debate it was clearly decided that if and when this becomes a headache, it is the Parliament which needs to frame the law defining the rules of appointment of the EC, respecting the Will of the People.
At one point, the Bench even suggested pursuing the direction of the Third Judges case under Article 142, which was used by the Court to create a law, much like the creation of Collegium, circumventing the CA clearly mentioning that it is the Parliament which is to make the law if that appears to be needed. The Government explains that the Article only allows the court to address the lacuna in law when it has significant national and social implications and cannot be used wantonly to usurp the law-making powers of the elected parliament. This is one of the most important factors to be considered when unscrupulous men like Prashant Bhooshan use reports by even more unscrupulous men like John Dayal to use the Courts to create a parallel government. Simeon Baldwin writes in his book The American Judiciary- ‘It cannot be law if its provisions contravene rules laid down by the Constitution of the State to restrict the legislative power. This is a concern that the Judiciary should also consider instead of using Article 142 as what the bench called in the hearing on 23rd November 2022 as Brahmaastra.
Every constitutional lacuna is not for the judiciary to fill. There are some silences which are to be filled by the voice of the people who send their elected representatives to the Parliament. The founding fathers of our constitution, therefore, left it that. Let us not second guess that and create a dictatorship of the unelected.
