Challenge To Election Commissioners' Law: Live Updates From Supreme Court

Parikh: Article 19(1) rights can only be curtailed by Article 19(2). So if you want to do this then you have to point out some constitutional provision that independence of ECI from executive influence is not part of the constitution. If you do, only then you remove the basis of the Anoop Baranwal judgement, otherwise you don't

J Datta: your submission is that not only the five judge bench stressed on need for a law under Article 324 but it also gave the reasons for why it should be free of executive control?

Parikh: because it will ultimately bear on the constitutional principles and also the fundamental rights under article 14 and 19. So the interpretation was based on how constitutional principles and fundamental rights are going to be affected if there is no independent Election Commission

Parikh: naturally the rights of the voters are affected if ECI is not independent. Article 19 is also violated

Parikh: an election commission that is not independent would fail to adhere to the guarantee of equality under article 14 of the constitution.

Bhushan concludes his arguments. Senior Advocate Sanjay Parikh begins arguing on behalf of PUCL.

Bhushan: your lordships have laid down a principle that when a law is declared invalid all actions done under the law will also go unless it is specifically said that it is prospective overruling. So without that if the Act goes all appointments made under the cover of the act will automatically go

Bhushan: this rests on the foundational principle that executive dominance over appointments to the election commission impairs free and fair elections which form part of the basics structure. Parliament can fill the vacuum but it cannot reintroduce the very defect identified in the judgement.

Bhushan: in defference of separation of powers they issued interim directions recognising a constitutional vacuum but simultaneously laid down a binding constitutional principle under article 141 that the selection of election commissioners cannot be placed under exclusive or dominant control of the executive

Bhushan: the impugned section restores the earlier position in law that appointment of CEC and ECs would be done solely by the executive. Even though this court in Anoop Baranwal urged the Parliament to make a law, it did not leave an unfettered field for the parliament

Bhushan: Same arguments which convinced the court in Anoop Baranwal and which convinced the court in four other constitution bench judgements.