Why Should Selection Panel For Election Commissioners Include Cabinet Minister? Third Person Must Be Neutral : Supreme Court

The Supreme Court today questioned the rationale behind including a Union Cabinet Minister in the selection committee for appointing the Chief Election Commissioner and Election Commissioners, while hearing challenges to the Election Commissioners Act, 2023.

A bench of Justice Dipankar Datta and Justice Satish Chandra Sharma was hearing petitions challenging the constitutional validity of the 2023 law, which provides that the selection committee for appointment of Election Commissioners will comprise the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of Opposition.

“It is not sufficient to be independent but it has to appear to be independent…The third member should be somebody who is a neutral person. He should select. Why should it be a Minister from the Cabinet??” Justice Datta asked Attorney General R Venkataramani during the hearing.

Venkataramani said that the perception of independence is important, and it will be shown from the actions taken by the Election Commissioners once they are appointed.

Justice Datta stressed that for the Election Commission to not only be independent but also appear to be independent, the level of public confidence in it “must be to that degree as if there had been a third neutral person in the selection committee.”

Over three hearings, the petitioners had presented extensive arguments on whether Parliament, while enacting the law after the Constitution Bench judgment in Anoop Baranwal v. Union of India, could create a selection mechanism in which the executive effectively has majority control.

Today, retired IAS officer SN Shukla, appearing on behalf of petitioner Lok Prahari, argued that the law failed to ensure the independence of the Election Commission and violated Articles 14 and 324 of the Constitution.

Shukla argued that relevant reports of the National Commission to review the working of the Constitution were not placed before the Cabinet or Parliament while the Bill was approved. He said that the Cabinet note was silent on those materials, and the Statement of Objects and Reasons did not explain how the law protected the independence of the Election Commission.

Calling the legislation “a fraud on the Constitution”, he argued that the amendment to the Bill replacing the Cabinet Secretary with a Union Minister in the search committee under Section 6 of the Act was introduced at the last moment without any justification being disclosed in Parliament.

He further contended that the search committee and selection committee were both effectively controlled by the executive, rendering the presence of the Leader of Opposition meaningless because the two executive members could outvote the Opposition member.

Shukla also challenged the appointments of the present Chief Election Commissioner and Election Commissioners under the Act. He argued that they lacked the “special knowledge and experience on matters of election” contemplated under the law and were selected for political reasons. Referring to Chief Election Commissioner Gyanesh Kumar and Election Commissioner Sukhbir Singh Sandhu, he argued that neither had served as a Chief Electoral Officer in a State.

Justice Sharma, however, questioned this submission and noted that IAS officers routinely work as Returning Officers and election observers. “They do have the experience in management and conduct of elections. They are IAS officers. You were also one. They have worked as Returning officers and Observers,” Justice Sharma observed.

Shukla further argued that the President approved the appointments without application of mind and without being provided complete information regarding the candidates' qualifications and experience.

Justice Datta questioned how the petitioners could conclude that the President had not been given the relevant material. Justice Sharma added that the official recommendation note may not necessarily contain all deliberations.

“Even in collegium we deliberate and minutes are prepared but the final note contains only the names instead of the entire volumes. It need not be in the note but how do you know the minutes were not sent to the President?”, Justice Sharma asked.

Attorney General R Venkataramani opposed the petitions and argued that the challenge proceeded on an incorrect assumption that the law necessarily destroys the independence of the Election Commission. He submitted that the issue of independence cannot be examined in the abstract and must be assessed on the actual functioning of the Election Commissioners after appointment.

He argued that the petitioners were wrongly treating Anoop Baranwal as if it were a statutory law binding Parliament's legislative choices. He highlighted that the Constitution itself leaves the issue to Parliament under Article 324.

He contended that the Constitution Bench in Anoop Baranwal had only created an interim arrangement under Article 142 to fill a legislative vacuum and that Parliament was free to choose a different model once it enacted a law.

He said, “The petitioners are attempting to treat the judgement in Anoop Baranwal as imposing constitutionally binding limitations upon Parliament's legislative competence. This would blur the constitutional distinction between temporary judicial arrangements and a substantive law enacted by parliament.”

He further submitted that Parliament had before it all the competing models and arguments discussed in Anoop Baranwal and consciously chose the present framework. He argued that asking the Court to determine the best model for appointments would effectively convert constitutional adjudication into a parliamentary debate.

The Attorney General also argued that Anoop Baranwal was “a matter of history because it has lost binding precedent value” after Parliament enacted the statute.

Justice Datta, however, disagreed with the suggestion that the Constitution Bench judgment was limited to interim directions under Article 142. He observed that the 300-paragraph judgment could not be treated as merely an interim arrangement under Article 142 and noted that the Constitution Bench had also interpreted constitutional principles relating to independence of the Election Commission.

Justice Datta also clarified that the Court, in the present matter, was not concerned with deciding the best model for appointments but only with testing whether the law violates Constitutional provisions.

Addressing the petitioners, Justice Datta said that the Attorney General had raised an important issue regarding whether a law validly enacted by Parliament can be tested entirely on the basis of reasoning contained in an earlier judgment which led to the enactment of the statute. He observed that such questions, which go to the very working of the Constitution, may require consideration by a Constitution Bench under Article 145(3).

Advocate Prashant Bhushan opposed the suggestion and argued that the issue was already covered by five Constitution Bench judgments and did not arise solely from Anoop Baranwal.

Senior Advocate Shadan Farasat submitted that the Union's counter affidavit filed a day earlier had not even suggested any reference under Article 145. He further argued that in the legal sense, the relevant constitutional principles had already been decided in earlier judgments and that no new question requiring interpretation arose.

Senior Advocate Gopal Sankaranarayanan submitted that the case concerned alleged breach of constitutional provisions and not interpretation of the Constitution itself.

Farasat added that there was sufficient guidance from existing Constitution Bench judgments and that a two-judge bench could decide the matter because there is nothing new arising for the first time in this case.

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