SC Judgment Didn't Say Law On Election Commissioners Must Be Made In A Particular Manner : Supreme Court During Hearing

The Supreme Court today questioned the basis of challenge to the law governing appointment of Election Commissioners, observing that the ruling in Anoop Baranwal v. Union of India was only meant to fill a vacuum until Parliament enacted a law and did not mandate any particular structure for such a law.

“Anoop Baranwal judgment was only to fill the vacuum till the law is made. There is no observation in the judgment that the law should be framed in a particular manner. Don't only take the ground of violation of the 5-judge judgment in Anoop Baranwal”, Justice Dipankar Datta said.

A bench of Justice Dipankar Datta and Justice Satish Chandra Sharma was hearing petitions challenging the statute which provides that the selection panel for appointing the Chief Election Commissioner and Election Commissioners will comprise the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition.

Justice Datta told Senior Advocate Vijay Hansaria for petitioner Jaya Thakur not to rely solely on the ground that the law violates the five-judge bench decision in Anoop Baranwal. He said the judgment did not lay down that Parliament must frame the law in any particular manner.

Hansaria responded that the challenge was based on constitutional principles identified in the judgment, particularly the requirement of an independent Election Commission. He argued that free and fair elections require an institution insulated from executive control. Justice Datta expressed dissatisfaction with the pleadings in the petition, remarking that the petition lacked specific averments on invalidity of Sections 7 and 8 of the impugned Act.

“I'm challenging on the ground of the constitutional principle which the court in Anoop Baranwal laid down and summarised. The constitutional requirement is an independent Election Commission”, Hansaria explained.

Senior Advocate Shadan Farasat, appearing for an intervenor, submitted that when the law was passed, a large number of opposition MPs were suspended, resulting in no proper debate. Advocate Prashant Bhushan, appearing for petitioner Association for Democratic Reforms, also pointed to pleadings stating that the law was passed without meaningful debate and through a voice vote.

Justice Datta, however, flagged defects in the verification of the ADR petition and directed that it be cured, stating that such lapses could not be ignored in a case of this importance.

During arguments, Hansaria emphasised that the independence of the Election Commission is as important as that of the judiciary. He submitted that the same principles governing judicial appointments should apply to the Election Commission.

He also contended that the appointments of CEC Gyanesh Kumar and EC Dr. Sukhbir Singh Sandhu were done in haste within a day of recommendation, without providing the Leader of Opposition sufficient time to scrutinise the recommended candidates.

He said that the concerned meeting was preponed, as the Union knew that the Court was set to hear petitioners' stay application against the Act the next day. He argued that such speed demonstrated excessive executive control.

Justice Datta said that allegations of motive could not be accepted without material showing that the Union knew the petitioner's matter would be heard on March 15 and advanced the process accordingly.

Hansaria clarified that he was not challenging the individual appointments but the vires of the Act itself, and merely highlighted the appointment of Gyanesh Kumar and Sukhbir Sandhu to show how the procedure functions when there is dominance of the executive.

Hansaria further highlighted that in several statutes such as the Special Police Establishment Act, the Competition Act, the Lokpal and Lokayukta Act and the Companies Act, the Chief Justice of India or other non-executive authorities are part of the selection committee.

Advocate Prashant Bhushan argued that the law restores executive dominance over appointments and violates constitutional principles underlying free and fair elections, which form part of the basic structure. He submitted that even if the Anoop Baranwal judgment did not exist, the same arguments would apply.

He contended that executive control over appointments affects Article 14 and Article 19 rights and, even a constitutional amendment cannot validate the impugned law, as any such constitutional amendment would violate basic structure of the Constitution.

Bhushan argued that independence is not secured merely by providing for removal through impeachment, rather, even the process of appointment must itself be free from control by a party that is a direct stakeholder in elections. He submitted that the ruling party is the principal contestant in elections and cannot be allowed to dominate the appointment process.

“I am relying on five such constitution bench judgments which said that all the judicial or quasi-judicial bodies have to be independent. The government again and again tried to bring Rules which were repeatedly struck down. Independence is not ensured only by the fact that removal can done only by impeachment. You have to ensure that the appointment is not dominated or controlled by a party which is one of the party to the disputes”, he said.

He also argued that if the Act is struck down, appointments made under it would not survive unless protected by a specific direction of prospective overruling.

Senior Advocate Sanjay Parikh, appearing for PUCL, argued that an ECI lacking independence would violate Articles 14 and 19 because voters' rights depend on a fair and impartial electoral process. He submitted that the interpretation of Article 324 in Anoop Baranwal was rooted in these constitutional guarantees, and any law undermining independence would directly affect these rights.

Senior Advocate Shadan Farasat argued that Anoop Baranwal judgment laid down a substantive rule that the selection mechanism must not be dominated by the executive, while the interim inclusion of the Chief Justice of India was only a procedural arrangement until a law was enacted. Once this substantive rule is identified, Parliament cannot enact a law that falls below that constitutional threshold, he said.

Farasat suggested that several alternative models could ensure independence, including requiring unanimity in the selection committee with the Chief Justice of India in a consensus-building role between PM and LoP, requiring a third member to be nominated by two-thirds majority of a joint sitting of the Parliament, or limiting the committee to the PM and LoP with a requirement of agreement. He argued that all these models avoid executive dominance, unlike the impugned Act.

The matter will continue next week.

Case no. - W.P.(C) No. 14/2024 Diary No. 146 / 2024 and connected cases

Case Title - Dr. Jaya Thakur v. Union of India and connected cases