Underlining the importance of having a chief election commissioner who is "independent and a man of character", the Supreme Court on Wednesday wondered will it not be a case of "complete breakdown of system" if the CEC does not act against the prime minister in case there are allegations against him.
The top court's remark came after the Centre claimed the present system of appointment of election commissioners and the chief election commissioner on the basis of seniority has been “doing fairly well”.
The appointment of election commissioner Arun Goel also came under scrutiny by the top court which sought from the Centre the original records pertaining to his appointment for perusal, saying it wanted to know whether there was any "hanky-panky".
The five-judge bench headed by Justice KM Joseph asked Attorney General R Venkataramani: ”Do you think the election commissioner, if he is asked to take on none less than the prime minister, we are saying it as an example, can he say no?”
Justice Joseph pressed further, saying, ”Suppose, for example, there are some allegations against the prime minister and the CEC has to act but he does not act. Will it not be a case of complete breakdown of the system?”
The bench also comprised Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar.
”The CEC should be insulated from political influence and needs to be independent and person of character. These are aspects which you have to delve into...why we require an independent larger body for selection and not just the Union council of ministers,” the bench said.
It told Venkataramani that several reports of the law commission and committees have said there is need for electoral reforms in the Election Commission.
Justice Joseph said he does not remember the particulars but there was an instance when one of the election commissioners had resigned.
"There is a need for a panel and not the council of ministers to recommend the names. There is a need for a change," he observed.
The remarks by the top court came a day after it 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.
The Constitution 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 on Tuesday.
Venkataramani, however, insisted the current system does not require a change as petitioners have not provided any instance where it can be said that the commission has not acted in a free and fair manner.
"The mechanism (of appointment by the government) is so robust that no one can go rogue except for stray incidents. These stray incidents cannot be a ground for the court to interfere. To safeguard the position is our endeavour," he said.
He added that there exists a system under which track records of secretaries and chief secretaries, both retired and serving, are maintained in the database of the Department of Personnel and Training.
"Then a panel of names is prepared by the law ministry and is sent to the council of ministers. The name is recommended to the prime minister who then takes it to the President for appointment," he said, adding that the present system has been working in fairly good manner.
The bench said it is nowhere suggesting that the system is not correct but there is the need for a transparent mechanism.
Venkataramani said merely the likelihood or apprehension of any wrongdoing does not call for the interference of the court.
The high-voltage hearing, which saw three top law officers -- Venkataramani, Solicitor General Tushar Mehta and Additional Solicitor General Balbir Singh -- make submissions on behalf of the Centre to buttress the point that the top court's interference with the existing system of appointment of ECs and CEC is not warranted.
The Election Commission of India, despite not being a party in any of the petitions, also intervened, saying any change in the existing system will amount to amending the Constitution.
The top court is hearing a clutch of petitions seeking among other things a collegium-like system for the appointment of ECs and CEC.
Mehta said the court cannot say that in the absence of a law, this should be the system because it is dealing with the Constitution and not a statute.
Singh said the existing system, which is based on convention, has worked fairly well for a very long time.
The bench asked him to apprise it of any instance when the senior most person has been superseded as CEC, saying if that has been done, then it calls for interference.
Advocate Prashant Bhushan, who appeared on behalf of petitioner Anoop Baranwal, said the submissions by government law officers that everything is correct is not correct, and there is an urgent need for the court to put in place a panel which selects the ECs and the CEC until a legislation is brought in Parliament.
Justice Joseph was dismissive about Bhushan's suggestion of having the Chief Justice of India on the panel he wanted for appointing the ECs and the CEC.
”You suggest that there should be a presence of the Chief Justice of India in the panel for selection of chief election commissioner and election commissioners. Now we need to understand from you what their role will be?
"Under the Constitution, the President means council of ministers as he or she has to act on their aid and advice. The appointing authority is the President. Can we eclipse the role of council of ministers? We cannot send the CJI to such a situation where his recommendation dies a premature death when sent to the council of ministers," Justice Joseph said.
The bench told Venkataramani the 1991 law that he referred to earlier only deals with terms of service conditions of ECs and the CEC which is evident from its very name.
Venkataramani, while defending the present arrangement, had pointed out that the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was a watershed moment that ensured independence in salary and tenure to the ECs.
"Suppose the government appoints a ‘yes man', who has the same philosophy and is like-minded. The law provides him all the immunity in tenure and salary, then there is no so-called independence in the institution. This is an Election Commission, where independence should be ensured at the threshold,” the bench said.