The Supreme Court on Wednesday said 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.

“Suppose the Election Commissioner is asked to take on none less than the Prime Minister… we are just giving an example… And the Election Commissioner is so weak-kneed that he does not get around doing it. Will it not be a case of complete breakdown of the system?” Justice KM Joseph, heading a Constitution bench, asked the government.

The court said an Election Commissioner should be a person who can take a stand even risking his life, and not a docile “yes man” whom the government knows will do its bidding.

“You appoint a ‘yes man’... Any government for that matter… Somebody carefully picks him… He is like-minded. You share an affinity of thought and philosophy… He will do whatever is your bidding, and you know it. You assure him security (of tenure)... Well, on the face of it, everything is fine and hunky-dory… But what is the quality required which may be found lacking… the most important quality which is at the core of our debate here — whether the man is really independent!” Justice Joseph addressed Attorney General R Venkataramani, who is leading the government side.

File of appointment

The court gave the government 24 hours to produce the file of appointment of former IAS Officer Arun Goel as Election Commissioner.

“We would like you to produce the file of appointment of this officer tomorrow (November 24)… If you are in the clear as you say and there is no hanky-panky, there is nothing to fear… You have any problem producing his file?” Justice Joseph asked Venkataramani.

The court repeatedly asked the government how it had appointed Goel as Election Commissioner when an application questioning the prolonged vacancy was already pending before the Constitution bench.

Advocate Prashant Bhushan, for the petitioner, said Goel was a secretary in the government on Friday. He took voluntary retirement that day and was appointed as Election Commissioner on Saturday and took charge on Monday.

Bhushan said Goel’s appointment immediately followed the Constitution bench hearing on Thursday on the need for a “neutral and independent mechanism” for appointment of Election Commissioners.

“What was the mechanism of appointment you followed? How did you make this appointment two days back? Show us the mechanism you followed for making this appointment,” Justice Ajay Rastogi, on the Bench, asked the government.

Justice Joseph clarified that the court was not sitting in judgment of the appointment. “We just want to see how you got it done… What was the procedure or process followed,” the judge said.

At one point, Justice Aniruddha Bose said none of the statutes lay down the procedure for appointment of Election Commissioners. “We are looking at the manner in which you are appointing Election Commissioners and whether the manner of appointment can put in a person who can act independently in his post,” Justice Bose said.

Justice C.T Ravikumar asked the government why it had only considered bureaucrats for Election Commissioners.

Venkataramani said Election Commissioners were “elevated” as Chief Election Commissioners as per seniority.

‘No independent mechanism’

“So if ECs become CECs, there is no independent mechanism to consider persons other than ECs for the post of CEC?” Justice Rastogi asked.

Additional Solicitor General Balbir Singh, also for the government, argued that the Election Commission of India has worked “perfectly fine” all these years. Elections were held on time and there was no need to question the system of appointment. The court should only intervene if a challenge had been raised against any specific appointment of Election Commissioner.

Solicitor General Tushar Mehta said the independence of the executive was as sacrosanct as the independence of the judiciary.

Justice Joseph said the court was not trying to encroach into any other domain of governance.

“Each political party in power will want to perpetuate that power… Nobody would be willing to make the changes required in the system… That is when the court steps in,” the judge said.

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