The While arguing the case seeking reforms in the system of the appointment of Election Commissioner, the five-judge Constitution bench, headed by K.M. Josheph, said there is a dire need to change the process of appointment of election. The bench also said, “Every government appoints a yes man as the poll body chief irrespective of the party.” Here are the detailed arguments between the bench and Attorney General R Venkatramani: Justice K.M.Joseph: Any government appoints a ‘yes man’ and you assure him security, on the face of it everything is fine but what about the quality which is lacking is, whether there is independence of his actions or not? The post has some independence attached to it. It is that quality which is required Attorney General: Yes that’s a necessity, but it’s a thought process. Post 1991, I am not able to find a trigger point that process is not followed in the appointment of election commissioner. There were less tenure also but since the person concerned has reached 65 years we have to look for other alternatives. Justice Joseph: Look at the appointment of Sunil Arora in 2017 AG: Person who has been appointed as Election Commissioner can be named as Chief Election Commissioner based on seniority. The model there is consultative process but it should be workable also. So, we just can’t go and borrow (from outside) the model just like that. Countries like Albenia, there are fragile democracies. In absence of good experience, no model will function well Justice Joseph: But we are on a different footing, we have to see how the appointment process goes on, whether you want to include Supreme Court judges or not, but there needs to be a model in place. This is a much needed step now. AG: There could be a shift between the nature of governance and the quality of governance. The convention is that all senior bureaucrats and officers at the state and the central government are taken into consideration while appointment. This is scrupulously followed. Bench: When you say that all civil servants have been taken into consideration, it points that you have only taken civil servants into consideration and no one else. Justice Rastogi: As per your letter, 1991 Act deals with what will be their terms, their appointment remuneration and other things but here are looking at the entry level mechanism of appointment. What kind of independence is there under 1991 Act. AG: 1991 Act does not address these issues, then the act needs to be modified. Justice Aniruddha Bose: We are looking at the manner of appointment and to ensure that he/she is an independent person. Justice Joseph: The moment you pick up Election Commissioner and then the same person goes on to become Chief Election Commissioner, so you might have some reservations. Justice Rastogi: Take instructions again. After appointment of Election Commissioner, on basis of seniority the person becomes Chief Election Commissioner. So there is no independent mechanism to pick up Election Commissioner, show us the mechanism for the entry level of the appointment of Election Commissioner. AG: There is no direct appointment of Chief Election Commissioner Justice Joseph: We have to then see how appointment of Election Commissioner goes as he is the man who becomes Chief election commissioner at one point of time. Justice Joseph ; You haven›t relied on article 326 and whether right to vote is a fundamental right or not? It›s a constitutional right. What›s your argument whether it›s a statutory right or constitution right or a fundamental right.
