The Supreme Court on Wednesday observed that the ruling requiring the Chief Justice of India (CJI) to be part of the selection process of the Chief Election Commissioner (CEC) and Election Commissioners cannot apply to the law enacted by Parliament as the court ruling was only intended to fill a legal vacuum.
Proceeding to hear a batch of petitions challenging the validity of the Central Election Commission and Other Election Commissions (Appointment, Conditions of Service and Term of Service) Act, 2023, the court noted that the selection committee under the Act comprises the Prime Minister, Leader of the Opposition in Lok Sabha and a Cabinet Minister. The petitioners argued that the law changed the requirement under the 2023 ruling of a five-judge bench in the Anoop Baranwal case which included the CJI as part of the high-level selection committee. However, the law has replaced the CJI with a Union Cabinet Minister. The petitions claimed that the ruling ensured independence in the selection process while the law gave the executive a major say in appointment to a vital position.
It is certain that the ruling was made before the law, a point made by the court.
A bench of Justices Dipankar Datta and SC Sharma said: “The 2023 judgment, on its bare reading, deals with a situation where it seeks to fill a void. Can we extend it beyond the point where the judgment is limited to the point until Parliament passes a law?”
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However, the court described the matter as “important” and agreed to hear the petitioners in this matter who claimed that the ruling is binding on Parliament and the law cannot prevail over it unless the basis of the ruling is removed. They said this could only be done through a constitutional amendment.
Under Article 324 (5) of the Constitution, Parliament can issue a law regulating the conditions of service of election commissioners. The 2023 ruling noted that such a law governing the appointment of CEC/Executive Councils had not been introduced since independence, and continued to issue directions by setting up a selection committee, on the lines of selection of the CBI Director and Chief Vigilance Commissioners. In these two appointments also, the CJI is part of the selection committee. But even then, the court recognized the rights of Parliament.
On Wednesday, the bench said: “It is the prerogative of Parliament to make laws. For seven decades, Article 324(5) remained on paper. Realizing this, the court said that for a law to be passed, some rules have to be made. Once the law is framed, can you say that the mandate under the provision has not been followed?”
Senior advocates Vijay Hansaria and Gopal Sankaranarayanan, who opened arguments for the petitioners, said: “The law cannot allow the sitting government to decide who will become the CEC and the EC. The Constituent Assembly discussions show that the Election Commission was supposed to be independent and the executive had no control over it. But this law allows the Prime Minister and his minister to choose someone to be the CEC or the EC.”
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Sankaranarayanan gave an example of how the Supreme Court devised the concept of collegium to appoint judges to constitutional courts. He said that when this law was requested to be amended by Parliament by enacting the National Judicial Appointments Commission (NJAC) Act, it was brought forward with a constitutional amendment by getting the support of two-thirds of the state legislatures. “Independent bodies should be run independently. The 2023 ruling put the CBI, CVC and Election Commission in one bucket and realized that for the first two, there was independence in selection but not for the third, and continued to issue directions,” he said.
The petitions were filed by the Association for Democratic Reforms (ADR), Congress leader Jaya Thakur among others.
“Today, one is pained to hear slogans chanted in public meetings against the Central Election Commission and electoral boards. It is unfortunate that names are being called on these constitutional functionaries by political parties against whom no action has been taken,” Hansaria said.
Solicitor General Tushar Mehta, who appeared at the Centre, said: “This argument cannot be accepted. If a judge uses abusive language against the body that appoints him, do we say that the body is bad?”
Since the petitioners’ arguments remained inconclusive, the court adjourned the case to Thursday.
