Why are there no rules for appointment of Election Commissioners?

The next Chief Justice of India Dipak Mishra, who takes over from CJI Justice J.S. Khehar who retires in August, will head the bench that will hear arguments whether the Supreme Court can direct the Parliament to enact a law laying down procedures for appointment of Election Commissioners.

The three members of the Election Commission, including the Chief Election Commissioner, are now appointed by the central government. While the senior most member takes over as the CEC by way of convention, there is no rule prohibiting the Union Government from appointing an outsider as CEC and superseding the senior most member of the Commission.

Solicitor General Ranjit Kumar argued in the apex court that all the Election Commissioners so far have been highly competent. He added that the Supreme Court cannot step in to legislate on behalf of the Parliament and thus exceed its jurisdiction.

Justice Khehar, however, referred to the Constitution which clearly mentions that Parliament was to lay down rules for the appointment of the Chief Election Commissioner. “But we find there are no rules,” exclaimed the CJI. Since Parliament has not bothered yet to frame the rules, surely the Supreme Court could step in and do so? Or can it direct Parliament to frame the rules with a time-frame? The questions are likely to be addressed by the bench headed by Justice Dipak Mishra when the hearing resumes two months from now.

At a recent event former CEC S Y Quraishi quipped that Election Commissioners are not required to even take any oath. “The oath that even IAS officers take retire with them,” exclaimed the former CEC. He felt in the absence of laid down rules, the Government has monopolised appointment of Election Commissioners.

Even the Supreme Court wondered why appointment of Election Commissioners should not involve the Opposition and wider consultations. If the Director, CBI can be appointed by a collegium comprising the Prime Minister, the Chief Justice of India and the leader of the opposition in the Lok Sabha, there surely cannot be any objection to a similar collegium to decide on the appointment of Election Commissioners, said aloud the judges.