Present Law Ensures 'Prime Minister's Man' Is Appointed As Chief Election Commissioner : Petitioners Challenging CEC Act Tell Supreme Court

The petitioners argued before the Supreme Court today that the Election Commissioners Act, 2023 ensures that the persons suggested by the Prime Minister will be appointed as Election Commissioners, making it impossible for any alternative candidate to be selected and undermining the independence of the Election Commission.

A bench of Justice Dipankar Datta and Justice Satish Chandra Sharma was hearing the batch of petitions challenging the constitutional validity of the 2023 Act, which provides that the section committee to appoint the Chief Election Commissioner and other ECs will comprise the Prime Minister, a minister nominated by the PM, and the Leader of the Opposition (LoP).

The matter came before this bench after CJI Surya Kant recused from the hearing, as the petitioners are challenging a law which removes the CJI from the selection panel.

During the hearing today, Senior Advocate Vijay Hansaria for one of the petitioners argued that Section 7 of the Act gives primacy to the executive and is contrary to the Constitution Bench ruling in Anoop Baranwal v. Union of India, which laid down a process in which appointments had to be made by a committee comprising the PM, the LoP, and the Chief Justice of India. The Court had laid down the process to be followed till Parliament enacts a law to govern appointment.

Hansaria clarified that the petitioners aren't contending that the CJI has to mandatorily be in the selection panel but that the selection shouldn't be controlled by the ruling party.

“The idea is that it should not be Prime Minister's man. Under the impugned Act, if the Prime Minister suggests the appointment of X, there is no way out that anybody else can be appointed. The Constituent Assembly members expressed that it must be independent, impartial and it must not be under government of the day”, he said.

He argued that the Constituent Assembly had consistently emphasised that the Election Commission must be independent, impartial, and not under the control of the government of the day. Referring to speeches of Dr. BR Ambedkar and other members, he submitted that elections must be conducted by a body outside executive control.

Hansaria submitted that while Parliament can enact a law to govern the appointment of CEC and ECs, it cannot directly or indirectly overrule a judgment of a constitutional court. He argued that granting final say to the executive in appointments violates the principle laid down in Anoop Baranwal.

He submitted that the ruling party has a direct interest in election outcomes and thus executive control over appointments creates a conflict of interest. Drawing a parallel with judicial independence, he argued that just as judicial appointments must remain outside executive control, the same applies to the Election Commission.

“Just as for Judiciary to retain independence it must be outside control of the executive in the matter of appointment of judges, the mode of appointment of Election Commissioner must be outside the control of the executive as there is conflict of interest between conduct of Election Commission and party in power. The ruling party has an inherent and direct interest in the outcome of the results of election conducted by the Election Commission of India”, he highlighted.

Justice Datta agreed that elections must be kept out of the hands of the government, but questioned whether the Constituent Assembly debates required that even the process of selecting Election Commissioners be insulated from executive control.

Justice Datta further noted that the Supreme Court in Anoop Baranwal laid down an interim mechanism to address a vacuum until Parliament enacted a law. He questioned whether a law made by the Parliament has to be bound by the judgment.

In response, Senior Advocate Vijay Hansaria submitted that while Parliament is competent to enact a law, it cannot create a framework that places exclusive control in the hands of the executive. He argued that the reasoning in the judgment was rooted in constitutional principles of independence of the Election Commission, and cannot be bypassed by legislation.

He also referred to parliamentary debates on the impugned law to submit that concerns were raised about executive dominance, with members questioning the purpose of a committee where the Prime Minister and a Union Minister form the majority.

Hansaria further submitted that various committees before and after the Constitution recommended broad-based selection bodies to avoid concentration of power in the executive. He argued that the consistent principle across these recommendations was to prevent exclusive executive control.

He also argued that irregularities in elections often become a fait accompli once results are declared, as remedies through election petitions may not fully address illegal or mala fide decisions of a biased CEC and ECs.

“All that we are looking for is an impartial appointment. We must have faith in the person”, he said.

Senior Advocate Gopal Sankaranarayanan submitted that while the Constitution Bench in Anoop Baranwal judgment did not mandate inclusion of the CJI in the selection panel under any law framed by the Parliament, it clearly held that the executive cannot have exclusive control over appointments.

He highlighted that this ratio decidendi was derived from constitutional principles and contended that since there has been no constitutional amendment, the present law cannot depart from that principle.

The arguments will continue tomorrow.

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