The Supreme Court today asked the Centre why no enabling law as mandated under the Constitution for the appointment of the Chief Election Commissioner and Election Commissioners has yet been framed.
"The Election Commissioners supervise and hold elections across the country and this is the significance of their office and their selection has to be made in the most transparent manner," a bench comprising Chief Justice J S Khehar and Justice D Y Chandrachud said.
The bench referred to the mandate of Article 324(2) of the Constitution and said, "it is expected from Parliament to make the law, but it has not been made."
Article 324(2) reads: "The Election Commission shall consist of the Chief Election Commissioner and such numbers of other Election Commissioners, if any, as the President may from time to time fix and appointment of the CEC and other ECs shall, subject to provisions of any law made in that behalf by Parliament, be made by the President."
The court, however, acknowledged that till now, the appointments of Election Commissioners has been "very, very fair and politically neutral". Referring to the void in the law, the bench said that to ensure "fair and transparent" selection process, it may step
in to lay down guidelines.
Solicitor General Ranjit Kumar, representing the Centre, said the President and the Prime Minister appoint the CEC and ECs and the court cannot be asked by the petitioner to intervene.
"Tell us, why no law has been made," the bench then asked.
When the Solicitor General said the Centre had made a law on appointment of judges in the higher judiciary, the bench replied in a lighter vein "forget judges." The Centre had enacted the National Judicial Appointments Commission Act which was struck down by the apex court.
"None other than the Prime Minister is involved in the selection of the Election Commissioners. Besides, it is for Parliament to decide whether there should be a law or not," he said.
The CEC and ECs perform the onerous duty of conducting election in the country and their appointment should be the conducted in "the most transparent" manner under the law enacted by Parliament, the bench said.
The bench said it would accord the final hearing in the matter and fixed it for hearing after two months.
At the outset, Prashant Bhushan, appearing for petitioner Anoop Baranwal, said a direction should be issued for making the law to ensure a "fair, just and transparent process of selection by constituting a neutral and independent selection committee to recommend the name for the appointment of the members of the Election Commission".
He also said that the Law Commission and parliamentary and statutory committees have also favoured transparent and fair procedures for appointing the CEC and ECs.
"The independence of the Election Commission is paramount," he said, adding that the selection and appointment cannot be left at the hands of the political executives. The bench expressed unhappiness over the fact that an officer of the rank of Deputy Secretary has filed the response on behalf of the Centre in such an important issue.
"Who should be short-listed? Who short-lists these names? What is the eligibility? There is nothing to show the procedure followed in selecting them," the bench observed.
"We would acknowledge that till now, all the appointments have been excellent," it said, adding however, Parliament has not enacted the law yet.
The plea said that successive governments have not acted and did not set up a "fair, just and transparent process" for selection of election commissioners.
It said the appointments have been made by the President on the basis of the advice given by the Prime Minister and the Council of Ministers.