Sudhanshu Ranjan
In a historic decision, the Supreme Court has taken away the right of appointment of Chief Election Commissioner and Election Commissioner from the government and given it to a committee. Its members will be the Prime Minister, the leader of the opposition or the largest party in the Lok Sabha and the Chief Justice of the country. The President has the right to make these appointments under Article 324 (2) of the Constitution, until Parliament makes a law in this regard. The President acts on the recommendation of the Council of Ministers. Therefore indirectly this right was with the government, which has been abolished by the court.
old demand
It has been demanded for a long time that these appointments should be made transparent and should not be monopolized by the government. Recently, Uddhav Thackeray strongly condemned the Election Commission’s decision to hand over the symbol of the party to the Shiv Sena’s Shinde faction as a real party. He also raised questions on the appointment of the Election Commissioner and said that it should not be with the government alone, the election commissioners should be appointed by a collegium.
It is true that if there is a committee for appointment to a sensitive post like Election Commissioner, its credibility will be more. But who appoints is more important than who is appointed. Right now there is a huge controversy going on regarding the appointment process of the judges of the higher judiciary. In 1993, the Supreme Court in a controversial judgment took away the power of this appointment from the executive. Its biggest basis was made on the autonomy of the judiciary. It was argued that the government is a party in most cases, so it should have no role in the appointment of judges. Disagreeing with the majority’s decision, Justice AM Ahmadi clearly wrote that it is not important who appoints, as once appointed, a judge enjoys complete security. The bigger question is who is appointed.
- The government has unlimited power to give anything to anyone. Recently many governors have been appointed. One of them is former Supreme Court judge Abdul Nazeer. He was made the governor just 39 days after his retirement. For this reason, questions are being raised on his decisions given in many other matters ranging from Ram Janmabhoomi.
- In the Ram Janmabhoomi case, a five-judge constitution bench gave a unanimous verdict in which he was also a part. Therefore, one view can be that he did not let the communal heat on his decision and gave the decision with discretion. But if he has got the post, then it is being alleged that the desire to get something influenced his decisions. It is to be noted here that Justice Nazeer was appointed under the collegium system that came after 1993.
- Justice Jagmohan Lal Sinha became a judge of the Allahabad High Court. He nullified the election of Prime Minister Indira Gandhi in 1975. He was appointed by the government. It is said that he was lured that if he gave a decision in favor of Indira Gandhi, he would be made a judge of the Supreme Court. After his retirement, when the Janata Party government came to power at the center, he was offered the governorship, but he turned it down as well.
- The Supreme Court also ordered the formation of a committee for the appointment of the CBI director. But what were its results? The question of the autonomy and objectivity of the director remained as before.
Obviously, the most important is the person’s own character. There are officers who discharge their duties with impartiality and fearlessness without any security. Whatever protection is given to the greedy, he will give priority to his own interest. Those who sit on the same post increase or decrease its dignity by their conduct and character.
Although every post and institution has its own importance, but in a democracy, the Judiciary and the Election Commission have special importance. That’s why their autonomy is essential. But autonomy will be effective only when the people sitting there take care of their dignity. The irony is that every party sitting in the opposition expects activism from the Judiciary, Election Commission, President, etc. but as soon as they come to power, their views change. He feels that he has got the mandate and he has the right to do whatever he wants.
judicial activism
Capable and honest person should be appointed on constitutional posts. It would be better if the process is also transparent. Right now most of the posts are occupied by former bureaucrats. Good signs will go if the deserving persons from other sections of the society are given important responsibilities. This decision of the Supreme Court is the latest example of judicial activism. It does not seem logical to say that since Parliament has not enacted any law on the appointment process in 72 years, the courts are filling the legislative void. Article 324(2) states that the Chief Election Commissioner shall be appointed by the President until Parliament makes a law. There is no direction to Parliament to legislate in it. If the Parliament feels that the present system is working, it will not make laws. Then on what basis did the Supreme Court constitute the committee and why did it include the Chief Justice? There are other respected citizens, social workers and scholars in the country. Why were they not included?
(The author is a columnist and author)
Disclaimer: The views expressed above are the author’s own.