Need CEC who can act against a Prime Minister too: Supreme Court

The Constitutional body is found 'weak-kneed as it does not act', the bench said

The Supreme Court on Wednesday said that there is a need for the appointment of such a Chief Election Commissioner (CEC) who can even take action against the Prime Minister if there are some allegations against him.

Hearing a batch of matters related to the appointment process of CEC and ECs, the top court asked the Centre to show the mechanism adopted in the appointment of IAS officer Arun Goel as Election Commissioner on November 18.

A five-judge presided over by Justice K M Joseph said the CEC is supposed to be insulated from political influence and should be independent.

Read | Was there any 'hanky panky': SC asks Centre to give file related to appointment of EC Arun Goel

"We need a CEC who can even take action against a PM," the bench said, adding if there is some allegation against the Prime Minister, the CEC has to be able to act, but the Constitutional body is "weak-kneed as it does not act".

The bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, asked the Centre if "we should not require an independent larger body for selection and not just Cabinet for the appointment of the Commissioners."

Maintaining that the independence of the EC is paramount, the bench also pointed there have been voices raising the dire need for changes, and politicians also "shout from rooftops" but nothing has happened.

In his submission, Solicitor General Tushar Mehta contended that a presupposition that only with the presence of the judiciary, independence and fairness will be achieved would be an incorrect reading of the Constitution. The mere presence of someone from the judiciary will ensure transparency is wrong reading and fallacious, he maintained.

The court asked the Centre led by Attorney General R Venkataramani, Solicitor General Tushar Mehta, and Additional Solicitor General Balbir Singh, to produce the file related to the appointment of Goel as Election Commissioner as he was "picked up".

The court's direction came as advocate Prashant Bhushan raised the issue saying Goel, who was sitting secretary, was appointed as CEC on Saturday, a day after allowing him to take voluntary retirement. Goel started working as CEC from Monday, he added.

The bench on this asked the A-G to produce the file as the government claimed that there was no "hanky panky" in this. "Was he appointed on the basis of voluntary retirement? What is the mechanism by which he was picked up? If there is no illegality, you should not be afraid of," the bench told the A-G, who contended this solitary instance cannot be used in a matter related to larger questions.

The bench asked the A-G to bring the file on Thursday, saying, "it is not a matter to withhold information".

The A-G said the appointment is made, depending upon the seniority of officers, by following a convention.

"So are we saying that there is no confidence in the Council of Ministers," the A-G asked.

On this, the bench said, "no, we are saying for our satisfaction show us the mechanism you adopted in the appointment two days ago".

During the day-long hearing, the bench said it understands that CEC is appointed from amongst the ECs, but then there is no basis for the Centre to consider only civil servants.

The A-G, however, said there is an in-built guarantee in the system, whenever the President is not satisfied with the suggestion then he can take an action. The hearing in a batch of matters on a reference made in 2018 for putting in place a Collegium-like mechanism will continue on Thursday.

On Tuesday, the Supreme Court noted a disturbing trend as the CEC is appointed for a truncated tenure, saying that "silences of the Constitution" is being exploited by all and expressed concern at the absence of a law governing the appointments of ECs and CEC.