On petitions seeking reforms in the system of appointing the election commissioners, bench comprising Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, said that the Constitution has vested vast powers on the “fragile shoulders” of the CEC and the two election commissioners.

Justice Joseph remarked “Apart from competence, what is important is that you need someone with character, someone who does not allow himself to be bulldozed. So the question is who will appoint this person? The least intrusive will be a system when there is the presence of the Chief Justice in the appointment committee. We feel his very presence will be a message that no mess-up will happen. We need the best man. And there shouldn’t be any disagreement on that. Even judges have prejudices. But at least you can expect that there will be neutrality.”

The bench then remarked that “There have been numerous CECs and T N Seshan happens once in a while”.

The SC said that although the CEC’s tenure is six years under ‘The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991’, no CEC has completed his tenure since 2004. It pointed out provisions which state that if the CEC attains 65 years of age, he will retire before the completion of the six-year tenure.

The bench said that “So, what the government has been doing is that because it knows the date of birth, it ensures that the one who is appointed does not get his full six years. So, independence gets thwarted. This trend has continued”.

The court said Article 324 of the Constitution, dealing with the appointment of election commissioners, had envisaged the enactment of a law to provide for the procedure for such appointments, but the government had not done this yet. In the absence of a law, the “silence of the Constitution is being exploited by all”, said the court.

Attorney General for India R Venkataramani, however, said: “there is no vacuum in the Constitution” on the issue. “Presently, election commissioners are appointed by the President, on the aid and advice of the council of ministers  the court must see the issue from this perspective."

He further said: “One set principle is that the original feature of the Constitution cannot be challenged. Matters that are open for scrutiny by this court are ones that violate fundamental rights. The court can enhance the provision, but when it comes to striking an original provision of the Constitution, that is for Parliament to debate and not the court.”

Seshan, former cabinet secretary, was appointed to the poll panel on 12th December 1990 with a tenure till December 11, 1996. He died on November 10, 2019.