The Supreme Court on Thursday admitted an “executive veto” in the appointments of the Chief Election Commissioner (CEC) and Election Commissioners, mocking the “show of independence” in making the Leader of the Opposition in the Lok Sabha the third member of the committee headed by the Prime Minister, with a Union Minister as another member.
This gives the executive control over appointments by a 2:1 majority.
The court was hearing a batch of petitions challenging the Central Election Commission Act and the EC (Appointment, Conditions of Service and Term of Service) Act, 2023. The petitioners claimed that the law threatens the independence of the Election Commission of India (ECI) by allowing the government to appoint a ‘man-man’.
The court noted that the five-judge Supreme Court decision in Anoop Baranwal’s case in March 2023 had fixed the composition of the selection committee for CEC/EC appointments, with the Chief Justice of India (CJI) as one of the members, but only until Parliament enacts a law. The law replaced the CJI with a Union Minister in the three-member committee. The law was passed shortly after the ruling.
“What troubles us is, why is there an executive veto after all these precedents we have set? For a post like CBI director meant for maintaining law and order and rule of law, you have a CJI in the selection committee but not for Election Commission appointments which are meant to maintain democracy through free and fair elections,” Justices Dipankar Datta and SC Sharma said.
The Director of CBI is selected by a committee comprising PM, LoP and CJI.
The court was responding to arguments made by Attorney General R Venkataramani, who appeared before the Centre, who said that the Baranwale ruling could not be a “binding precedent” as it was a “part of history” and would remain in place until Parliament passed a law. The Center submitted a statement on Wednesday in which it said that including a member of the judiciary in the selection committee is a legislative choice and not a constitutional necessity, and the assumption that the current committee will be biased is hypothetical and incorrect.
The Council commented, “We are not saying that you should have a CJI on the committee. But why should there be a Cabinet Minister? For that matter, why is there a Leader of the Opposition. Why are you making this offer of independence?”
Venkataramani said that in the last six to seven decades when the CEC and Election Councils were appointed by the executive, there has never been a bad experience that would jeopardize free and fair elections. In such a situation, the court cannot engage in a fishing expedition, he said, adding that the independence of the poll panel is guaranteed not only by the method of selection but by its constitutional status, security of tenure, impeachment safeguards and legal protection of its functions and remuneration. He stated that the 2023 law only adds procedural transparency to the appointment process.
The court was not convinced: “Suppose there is a dispute between the Prime Minister and the Leader of the Opposition, the third member must be a neutral person. Do you expect that the Minister in the Cabinet will stand against the Prime Minister? This is the executive authority that controls everything.”
The court said that previous rulings of the Supreme Court had consistently held that the Election Commission of India should be insulated from executive oversight. “We will not say anything about what the Anoop Baranwal judgment said about inclusion of the ICC. But wasn’t Parliament aware of the precedents we (set)? This court has given importance to democracy and purity of elections. You need to show that this law does not go beyond these values,” he said.
The petitioners, including Congress leader Jaya Thakur, NGO League for Democratic Rights among others, argued that the law is unconstitutional as it violates Article 14 being arbitrary in nature and defeats the free and fair elections promised under Article 324 of the Constitution.
AG Venkatramani said the petitions are trying to impose the Baranwal rule on the legislature which is impermissible. “This court is being asked to enter the legislative arena on the hypothetical pretext that CEC appointments and electoral councils will lack independent functioning.” In response, the bench noted that “the Independent Election Commission can ensure the conduct of free and fair elections, and this can be ensured by the existence of independent electoral commissions. There is a question of constitutional credibility because it is not enough for the electoral commissions to be independent but they must also appear independent.”
Since this case raised a fundamental legal question of interpretation of the Constitution under Article 145(3), the Court asked the petitioners whether this question should be referred to a bench of at least five judges. The Attorney General’s written submissions raised this issue although the affidavit was silent in this regard.
Senior advocates Vijay Hansaria, Gopal Sankaranarayanan, Shadan Farasat and advocate Prashant Bhushan opposed the need and said several earlier decisions, including Baranwale’s, had interpreted the Constitution and the law now needed to be interpreted in the light of those decisions.
The court adjourned the matter for further hearing on May 19. Solicitor General Tushar Mehta informed the bench that he will also submit his submissions next week.
