 "Supreme Court, TN Seshan and Election Commission: Neither a good check, nor the right balancing act")
On Wednesday, a constitution bench of the Supreme Court led by Justice KM Joseph and also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar directed the Central government to produce the file relating to the recent appointment of retired civil servant Arun Goel as an Election Commissioner (EC).
On 21 November, Goel was appointed to the post of EC which was vacant for the last six months.
The apparent reason behind the direction was that appointment was made when the court is hearing a petition seeking a stay on appointments to the Election Commission of India (ECI) and putting in place an independent system for appointments of the Chief Election Commissioner (CEC) and ECs.
The apex court while issuing the direction said that enormous responsibility lies on the shoulders of the CEC and the person should, therefore, be someone who cannot be bulldozed. The bench praised former CEC TN Seshan who initiated several path-breaking electoral reforms. The bench also criticised the political parties in power for weakening the election body and compromising its independence.
While the concerns of the apex court regarding the independence of the commission were well thought of, the fact remains that the same Supreme Court had contributed to clipping his wings by upholding the sudden move of the government to appoint two new ECs in 1993.
In his six-year tenure as CEC, Seshan initiated hundreds of electoral reforms while strengthening and increasing the “free and fair” quotient of the electoral process. He also consolidated the position of the ECI as one of the strongest constitutional bodies upholding the democratic ethos in India.
However, Seshan whom the Supreme Court referred to as an individual who assumes such important offices “once in a while” and marked him as a man with a character who “does not allow himself to be bulldozed”, was in fact bulldozed by the then government in power and he was left alone to defend himself.
In 1993 the government sprang a surprise when it overnight converted the ECI into a multi-member body by appointing two more ECs. As reported by India Today, “The move was so sudden that even the two new election commissioners, G.V.G. Krishnamurthy and M.S. Gill, knew about it only hours before their appointment on October 1”. The report stated that M.S Gill, who was then the agriculture secretary, had gone to Gwalior that morning and the government sent a special aircraft from Delhi to rush him back.
In 1991 a journalist had asked Seshan if he was aware of the fact that the government was planning to clip his wings, to which he had candidly replied: “If my wings are clipped, I will run like an ostrich.”
True to his mettle and words, Seshan did run like an ostrich to bring significant reforms in the electoral process that included the introduction of voter identity cards, creating a limit on campaign expenditure by candidates, and stringent enforcement of the model code of conduct.
But the fact remains that the sudden expansion of ECI by inducting two more ECs was an act of power assertion by the government in power. Seshan, who moved the Supreme Court with the petition challenging the government’s decision, had to face defeat as the apex court upheld the government’s decision.
Manoj Mitta in an article published in Indian Today in 1995, wrote, “Another criticism of the judgement stems from its apparent preoccupation with attacking Seshan’s personality. One indication of this is the frequent digressions made by the judgment to attack his various high-profile activities, all unconnected to the legal issues thrown up by the case.”
Coming back to the current case, in spite of the fact that the court remarked that there is nothing “adversarial” in its directions, the fact that the highest court of the land seeks details of the appointment of the EC will surely attract unwarranted commentary from different quarters against Goel’s appointment.
It is important to understand that no matter in how many words the apex court assures that seeking the file of appointment of the newly appointed commissioner is not “adversarial” and it in fact finds him academically “excellent”, it does cast a shadow of doubt on his appointment.
The freedom of any office can be assured only when people don’t have, in any measure, the reason to point a finger. When a constitutional functionary is brought to scrutiny, and that too by the highest court of the land, then shielding him from unwarranted and unsubstantiated criticism becomes difficult.
The meetings of the Supreme Court collegium — which is tasked with the appointment of judges to the High Court and the Supreme Court — are never made public. This is done because in case the collegium decides not to elevate a certain judge to Supreme Court, making the name of that judge public would cast unnecessary doubts in the minds of people and would make the working of that judge difficult.
Hearing a petition in 2019 related to the disclosure of information regarding the appointment of judges, then Chief justice of India (CJI) Ranjan Gogoi told Senior Advocate Prashant Bhushan that there was a District Judge who was appointed to HC. His term was not extended. He filed a petition under Article 32. “We called for Collegium records and showed them to him, following which he withdrew the petition,” he said. “Imagine what would have happened to that judge if Collegium’s reasons were made public,” asked Justice Gogoi.
Another question that needs to be asked is: Does the Supreme Court apply the same rule to itself that it seeks to thrust upon other institutions?
The Collegium system of appointment of judges has faced several criticisms given the nature of its opaque functioning. The government’s attempt to bring in place a new system of appointment was scuttled by the apex court through the NJAC verdict. The NJAC verdict struck down the NJAC Act that was passed by both houses of Parliament, rectified by 16 states, and assented by the President.
The Supreme Court itself created the system of the Collegium which finds no parallel in the world; it was not ready to allow any outside interference in the judicial appointment. But it is more than willing to be part of a new system of appointment of CEC and ECs. As reported by Live Law, the court had suggested the inclusion of the CJI in the committee appointing the CEC.
In its more than seven decades of existence, the ECI has a proven track record of commendable work with several CECs and ECs displaying exemplary dignity and integrity in executing their responsibility as electoral watchdogs.
While many ECs proved to be extraordinary, some quietly fulfilled their duties diligently. But in no case, any of the CEC or ECs ever has been accused of corruption or malpractice or compromising the integrity of his office.
There have been several instances where wrong appointments were reportedly made by the Collegium which brought disgrace to the institution. There have been several calls from noted jurists, and former SC and High Court judges for reforming the collegium system. But there has been no headway in this regard. But the apex court is keen on intervening in the appointment of CECs and ECs which is constitutionally the job and prerogative of the government.
As reported by The Times of India, Attorney General R Venkataramani rightly pointed out that there is no “pick and choose procedure” adopted by the government and appointments are done on the basis of the seniority of bureaucrats. He said that there has not been any instance of a partisan or an unqualified person getting appointed to trigger the court’s intervention.
It is not the first time or the first institution in whose work the SC is trying to intervene. In 2012 the apex court directed that only a serving or retired chief justice of a High Court or a judge of the apex court would be appointed as the Chief Information Commissioner (CIC).
The Constitution of India envisages a clear scheme of separation of power. One of the most respected members of the Constituent Assembly KT Shah during a debate had rightly asserted that “if you maintain the complete independence of all the three (legislature, executive and judiciary), you will secure a measure of independence between the Judiciary, for example, and the Executive, or between the Judiciary and the Legislature. This, in my view, is of the highest importance in maintaining the liberty of the subject”.
The higher judiciary has on several occasions sought to regulate the matters which are clearly within the domain of legislature and executive. While the court intervention in matters where the state fails to protect the interests of its citizens is welcomed and is much desired, the same intervention slips into the domain of judicial overreach — which is completely unwarranted and undesirable — when it tends to regulate institutions that derive their power from the same Constitution as it does.
In January 2021, the Supreme Court stayed the implementation of three farm laws enacted by the Central government following protests by certain farmer groups. The decision of the apex court was on the edge of being legally bizarre as the order did not state any legal or constitutional basis for the stay. Rather assuming the role of self-appointed mediator in a rift that was essentially between the state and its citizens, that required proper adjudication to reach a conclusion or verdict.
The apex court assumed this role simply because “the negotiations between the farmers’ bodies and the government have not yielded any result”.
Checks and balances are touchstones of a vibrant democracy. But it is neither a one-way act, nor the checks should intend to balance the power in one’s own favour.
It is meant to check the wrongdoing and balance the excess power that any one institution seems to have acquired.
But the Supreme Court by intervening excessively in the domain of legislature and executive at regular intervals is creating a disequilibrium that is certainly not a good balancing act.
The writer is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal.
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