SC flags ‘executive veto’ in CEC appointment

This effectively gives control to the executive over appointments with a 2:1 majority.

The court was hearing a clutch of petitions challenging the CEC and EC (Appointment, Conditions of Service and Term of Office) Act, 2023. The petitioners claimed that the law threatens the independence of the Election Commission of India (ECI) by allowing the government to appoint their “yes man”.

The court pointed out that a five-judge bench decision of the Supreme Court in the Anoop Baranwal case decided in March 2023 laid down the composition of the selection panel for CEC/EC appointments , with the Chief Justice of India (CJI) as one of the members, albeit until Parliament enacts a law. The law replaced the CJI with a Union minister in the three-member panel. The law was passed shortly after the judgment.

The bench of justices Dipankar Datta and SC Sharma said, “What troubles us is, why is there an executive veto after all these precedents that we have laid down? For a post such as CBI Director that is for maintaining law and order and rule of law you have CJI in the selection panel but not for Election Commission appointments which are for maintaining democracy through free and fair elections.”

The CBI director is selected by a panel comprising the PM, LoP, and CJI.

The court was responding to arguments made by Attorney General R Venkataramani appearing for Centre who said that the Baranwal judgment cannot be a “binding precedent” as it is “part of history” and would hold the field till Parliament brought a law. The Centre filed an affidavit on Wednesday which said that the inclusion of a member of judiciary in the selection panel is a legislative choice and not a constitutional imperative and to assume that the present panel will be biased is hypothetical and incorrect.

The bench remarked, “We don’t say you must have CJI in the panel. But why should there be a Cabinet minister? For that matter, why have the Leader of Opposition. Why do you put up this show of independence?”.

Venkataramani said that in the past six to seven decades when CEC and ECs were appointed by the executive, there has never been a bad experience that has compromised free and fair elections. In such a situation, the court cannot engage in a fishing expedition, he said, adding that independence of the poll panel is secured not just by the manner of selection but by its constitutional status, security of tenure, safeguards regarding removal, and statutory protections of its functions and emoluments. The 2023 Act only adds procedural transparency in the appointment process, he stated.

The court was not convinced: “Suppose there is a disagreement between the PM and the Leader of Opposition, the third member should be a neutral person. Do you expect the Cabinet Minister to go against the PM? This is the executive controlling everything.”

The court said that past judgments by the top court have consistently held that the ECI should be insulated from executive control. “We are not going to say anything on what the Anoop Baranwal judgment has said on the inclusion of CJI. But was Parliament not aware of the precedents we have laid (down)?. This court has given importance to democracy and purity of elections. You need to show that this law does not override these values.”

The petitioners including Congress leader Jaya Thakur, NGO Association for Democratic Rights among others have argued that the law is unconstitutional as it is violative of Article 14 being arbitrary in nature and defeats free and fair elections promised under Article 324 of the Constitution.

AG Venkatramani said that the petitions are trying to impose the Baranwal judgment on the legislature which is impermissible. “This court is being asked to enter into the legislative arena on a hypothetical argument that appointments of CEC and ECs will lack independent functioning.” In response, the bench observed, “An independent ECI can ensure free and fair elections and this can be ensured by having independent ECs. There is a question of constitutional credibility as it is not sufficient that ECs are independent but must also appear to be independent.”

Since the issue raised a substantial question of law involving interpretation of the Constitution under Article 145(3), the court asked the petitioners if this matter should be referred to a bench of at least five judges.The written submissions of AG raised this issue though the affidavit was silent in this regard.

Senior advocates Vijay Hansaria, Gopal Sankaranarayanan, Shadan Farasat and advocate Prashant Bhushan opposed the need for this and said several past decisions, including Baranwal, have interpreted the Constitution and the law now needs to be interpreted in the light of those decisions.

The court posted the matter for further hearing on May 19. Solicitor general Tushar Mehta informed the bench that he too will make submissions next week.