A Case Of Judicial Overreach, Comment Against ECI Unfair- Mukul Rohatgi On Supreme Court's Judgment On ECI Appointment

Senior Advocate Mukul Rohatgi has harshly criticized the Judgment of the Constitution Bench of the Supreme Court by which it was held that Election Commissioners should be appointed by a panel consisting of the Prime Minister, the leader of the opposition and the Chief Justice of India.

The Ex-Attorney General termed the remarks against the Election Commision in the Judgment "unfair". The opinion authored by Justice K.M. Joseph uses words like "servile" and "pliable" in the context of the Election Commission of India 

 "I think it is an unfair comment. The Election Commission is one of our most impartial bodies from the times of late TN Seshan and I think in the last 60-70 years, it has acquitted itself admirably. Therefore, I do not see any basis for a comment of that nature at least for this body...This is one body which cannot be looked at in a tarnished form like many other bodies in the country”, Rohatgi said in an interview to the NDTV.

Justice Joseph's opinion, which is concurred with by Justice Aniruddha Bose, Justice Hrishikesh Roy, Justice C. T. Ravikumar, and by Justice Ajay Rastogi with a separate opinion says, "An independent person cannot be biased. Holding the scales evenly, even in the stormiest of times, not being servile to the powerful, but coming to the rescue of the weak and the wronged, who are otherwise in the right, would qualify as true independence". (emphasise added)

The opinion also says, "A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power". (emphasise added)

Mukul Rohatgi also said that the formation of the Committee through the Judgment amounts to judicial overreach. 

“..The Court could have said that let the government frame a transparent policy for appointment rather than saying that we as the Court, we now direct a committee to be formed which will consist of the Prime Minister, the LOP (Leader of Opposition) and the CJI (Chief Justice of India). We form a committee, and we give them the power to appoint these persons, I think that is a judicial overreach”, he said.

He said that the losing party always blamed the Election Commission. Whether it was the Shinde matter or any other matter, people always blamed the decision-making body, the Election Commission, he said.

"I think it is a case of an overreach which was not warranted by the facts", Rohatgi said.

Mukul Rohatgi also said that what the Court did was beyond its remit and that the system of separation of powers has been blurred by the Court through its Judgment.

"The Court should not have created a panel by naming the functionaries who will man it. Because, ultimately, it's law to be made by Parliament. But then, till then as a stop-gap measure, as was done in the Vishakha case, the Court could have asked the government to make a transparent set of rules and that should have sufficed till a formal law is made by Parliament. But creating a body, creating members of that body I think is beyond the remit of the Court. The often spoken system of separation of powers according to me has been blurred and this might be suspect is what I feel", the Senior Advocate said.