The appointment of the Chief Election Commissioner of India has been a bone of contention between the government and the opposition members. Currently, a panel of the Prime Minister, a cabinet minister nominated by the PM and the Leader of the Opposition selects the CEC with majority votes. Leader of the Opposition in the Lok Sabha Rahul Gandhi has vehemently opposed this set-up, calling for neutrality in the selection of the CEC. Gandhi has opposed the current statutory framework governing the selection panel. He has argued that the selection process must be completely free from government interference. He has heavily criticised the government for replacing the CJI with a Union Cabinet minister on the high-powered selection panel under the 2023 Appointment Act. Rahul Gandhi has time and again urged for the onboarding of the CJI in the panel.
Before 2014, when the BJP came into power, the CEC was solely appointed by the Prime Minister and the Union Council of Ministers. There was no panel, and the opposition was never consulted during the Congress era when appointing the CEC. Although Article 324 specified that appointments should be subject to any law made by Parliament, the successive governments did not enact a dedicated law outlining a formal appointment process for over seven decades until 2023. The BJP contends that the law made by its government gives a voice to the LoP, which was not the case during the Congress government.
A five-judge Supreme Court constitution bench ruled in 2023 that, until Parliament established a formal law, appointments ought to be decided by a committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India to guarantee impartiality. However, Parliament later passed the 2023 legislation, substituting the Chief Justice with a Union cabinet minister on the panel.
Now, the Supreme Court has taken up a petition which called for inclusion of the CJI in the panel selecting the CEC.
The Supreme Court stated on Thursday that the Election Commission must not only function independently but also be perceived as doing so. The apex court questioned why Parliament chose to exclude the Chief Justice of India from the selection panel while drafting the legislation.
A bench comprising Justices Dipankar Datta and Satish Chandra Sharma noted that the CJI was included in selection panels for the CBI director and the Lokpal. They asked what justification existed for omitting the CJI from the selection of the CEC and election commissioners, given that these positions are vital to a democracy. The court reserved its verdict on the Centre’s request to refer the matter to a constitution bench.
The court is reviewing challenges to the constitutional validity of the 2023 Act. Solicitor General Tushar Mehta argued that the court cannot proceed on the assumption that the Prime Minister would act against democratic principles.
Attorney General R Venkataramani and Solicitor General Tushar Mehta urged the bench not to question the wisdom of Parliament. They asserted that doing so would interfere with the legislature’s independence. The Solicitor General added that the executive, legislature, and judiciary are independent organs of the state whose autonomy must be respected.
The bench clarified that trust in the Prime Minister was not in question. However, the judges asked the Solicitor General how many government ministers currently have pending criminal cases, noting that the court had previously placed its trust in the elected government to ensure individuals with criminal backgrounds are not appointed as ministers.
The bench emphasized that the issue is not a lack of faith, but rather the requirement that an election commissioner be an independent figure and that fairness must be visibly demonstrated.
In an official affidavit, the government pushed back against the petitioners’ claims that replacing the CJI with a cabinet minister compromises the Election Commission’s independence. It maintained that the law enacted by Parliament contains no flaws and highlighted that free and fair elections were consistently maintained for over seven decades when appointments were made exclusively by the executive.
The government characterised as purely hypothetical the assertion that granting the executive sole authority over election commissioner appointments inherently undermines the independence of the election watchdog.
Bureau Report
Leave a Reply