During the hearing today, the AG submitted that the present matter was not one calling for judicial intervention as earlier instances of the same were in the cases of exigencies, like mounting vacancies in tribunals.
Additional Solicitor General Balbir Singh said that the matter is one to be dealt with by parliament given the absence of a law. He also disputed the fact about short tenures of CECs, saying the petitioners had not taken their periods serving as Election Commissioner into account.
“By virtue of providing an alternate arrangement, are we going to dislodge the [powers of the] President and aid of Council of Ministers? We cannot.“
Justice Joseph stressed the complete independence of Election Commissioners.
“They are supposed to be completely insulated, and need independence. To ensure this, a larger selection body may be needed.“
To Justice Joseph’s suggestion yesterday to include the CJI in the selection committee, Solicitor General Tushar Mehta cited the doctrine of separation of powers.
“The submission that there has to be presence of someone (in the selection committee for ECI members) who is not with the executive, that would necessarily involve the process of rewriting the Constitution. Democracy is in the preamble and lordships would be wrong in saying that but for the presence of a non executive member, the executive here will not be able to discharge its functions. I am on [this] constitutional proposition.”
The SG added that independence of both the judiciary and the executive was sacrosanct.
“Our bureaucrats are doing amazing work. Mere presence of someone else being in the committee may be a fallacious argument. Lordships may kindly not travel through that part. If there is need for a law, then your lordships can suggest so to parliament. Court cannot issue mandamus for something that parliament is supposed to. In the absence of law, the Court cannot say this is law, follow it until there is law. These are officials appointed by the President,” the SG said.
Source: Barandbench
