The top court backed the idea that a bipartisan committee with representation from the opposition as well, should decide appointments to the election commission mandated to conduct state and central elections.
In the absence of a law, the government has a free hand in selecting officials as members of the three-member poll body. When a Chief Election Commissioner completes his or her term, the seniormost of the remaining two members is selected as the chief.
But this is a convention and there is nothing to prevent the government from exercising its discretion. A similar convention to appoint the senior-most member as chairman of the Union Public Service Commission was breached in 2014 when a retired Jharkhand officer Deepak Gupta was straightaway appointed to head this public service recruitment body.
The top court made the observations on petition by a Uttar Pradesh lawyer who pointed to constitutional provisions that required parliament to lay down the selection procedure.
The central government's top lawyer Ranjit Kumar opposed the petition and asked the court to dismiss it. Solicitor General Kumar told the court that parliament had decided not to enact a law on the appointment procedure and the court couldn't force the legislature to make a law.
"Constitution expects Parliament to enact procedure for appointing Chief Election Commissioner and Election Commissioners. But we find no procedure," Chief Justice Khehar said.
The court made it clear that it wasn't questioning the merits of the officials appointed to the top election body so far. "Till now all appointments are outstanding and neutral to political parties," Justice Khehar said.
But at the same time it pointed this didn't take away from the need for a law; "Like there is a procedure for appointing CBI director, there should be one for Election Commissioner also". The CBI director is selected on the recommendations of a panel headed by the Prime Minister that also includes the leader of the largest opposition party in the Lok Sabha.
The petition was heard just a day after the government appointed Mr Achal Kumar Joti as the next Chief Election Commissioner succeeding the outgoing Dr Nazim Zaidi.
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