The recent observation of the Supreme Court that the country needs Election Commissioners, who will not shirk from even taking on the Prime Minister if required and not just “weak-kneed” yes men, has sent shock waves. Obviously, by making such sweeping observations, which appear to be hasty, Supreme Court judges give the impression that they think that the Election Commission is not discharging its responsibilities properly and independently.
It appears that the Supreme Court has assumed an “elder brother attitude” towards the Election Commission, even though both Judiciary and Election Commission are independent constitutional bodies Constitution makers have not said or implied anywhere that Election Commission is subservient to the judiciary.
Many discerning observers wonder whether the Supreme Court has the power and authority to act like a supervisory body over the Election Commission.
The essence of Article 324 of the Constitution
Article 324 of the Constitution provides a reservoir of power for the Election Commission to act for the avowed purpose of pursuing the goal of a free and fair election and therefore, the Election Commission is in sole charge of determining the conduct of elections. The terms provided under Article 324 of the constitution are of wide amplitude and empower the Election Commission to take necessary recourse to address the issues.
Obviously, Article 324 of the constitution clearly indicates that the Election Commission can act independently to conduct elections in a fair and free manner, based on the exigency of the situation and the ground realities, in areas where the law is silent.
This also means that the judiciary has no authority to question the Election Commission, whatever may be decisions.
A retrograde step:
Originally, the constitution vested with the Election Commission the responsibility of appointing the election tribunals to take decisions on doubts and disputes arising, in connection with elections to parliament and legislature of the states.
However, on the recommendation of the Election Commission in 1962, the trial of election petitions was entrusted to the judiciary and the institution of election tribunal was abolished. Article 324 (1) was amended (19th Amendment) Act 1966, to relieve the election commission of the function of appointing election tribunals.
This has proved to be a retrograde step and against the desire of the constitution makers and made the Election Commission look subservient to the judiciary, which the Constitution makers never intended.
Has the judiciary overreached itself?
While the above amendment involves surrendering of the powers of the Election Commission to the judiciary as far as the election tribunals are concerned, the other powers and authority of the Election Commission remain intact.
In the past, several decisions of the Election Commission have been overruled by the judiciary, without recognising the powers of the Election Commission as per the Constitution.
In the process, the image of the Election Commission has been brought down in the public eye by the judiciary, which is a counterproductive development.
Questioning the appointment of Election Commissioners:
Now, the judiciary has taken one more step in spoiling the image of the Election Commission by questioning the appointment of Mr Arun Goel as Election Commissioner. This appointment has been done by the government as per the set procedure that is followed ever since India’s independence.
At the same time, the Supreme Court judges have ignored the fact that serious questions have been raised in the country about the way of Supreme Court Collegium appoints judges for the Supreme Court and High Court, without transparency. The recent protest by lawyers in a few states against the transfer of judges from one state to another by the Supreme Court pointed to the fact that there are serious misgivings about the decision of the Supreme Court in such matters.
Can we say that the Supreme Court questioning the appointment procedure of Election Commissioners is like the pot calling the kettle black?
Tenure of Election Commissioners:
Supreme Court judges have also criticised the brief tenure of the election commissioners and said that in many cases, the tenure was too short. However, the fact is that there are many judges who have short tenures and with the recent case of the Chief Justice of the Supreme Court remaining in the job only for a few months.
The tenure of judges or election commissioners need not be a matter of concern, as they can do whatever they want within their powers even in short tenure.
Supreme court judges need to reflect on their observations:
The observations of the Supreme Court judges seem to question the capability and credibility of the Election Commissioners without any basis.
If Supreme court judges were to find fault with the Election Commission, in a scenario where both are constitutional bodies, can we say that the Election Commission can also find fault with decisions of the Supreme Court?
One constitutional body criticising another constitutional body is in bad taste and needs to be avoided.