‘Why not an independent member?’: SC flags executive dominance in appointment of CEC, ECs

New Delhi: The Supreme Court on Thursday raised questions over the Centre’s law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), observing that the present selection mechanism appeared to place effective control with the executive and reduced the role of the Leader of Opposition to a mere “show of independence”.

Hearing a batch of petitions challenging the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, a bench of Justices Dipankar Datta and Satish Chandra Sharma questioned why no independent member had been included in the selection panel responsible for appointing top officials to the Election Commission of India (ECI).

Under the 2023 law, the selection committee comprises the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.

During the hearing, the Justice Datta-led Bench repeatedly stressed that the independence of the ECI was integral to preserving free and fair elections, which form part of the Constitution’s basic structure.

“We were wondering. For a CBI Director, the CJI is there. We can say for the maintenance of law and order. Or you can stretch it to the rule of law also. But not for maintaining democracy? Not for ensuring pure elections?” it observed.

The apex court clarified that it was not necessarily suggesting that the Chief Justice of India (CJI) should be part of the selection committee, but questioned the absence of any independent member in the selection process.

“We don’t say the CJI should be there. But why shouldn’t there be an independent member?” the Supreme Court asked.

It then questioned the practical functioning of the three-member selection panel, observing that in the case of disagreement between the Prime Minister and the Leader of Opposition, the Cabinet Minister would invariably side with the government.

“Why do you then include the Leader of the Opposition? He’s ornamental. It will always be 2:1. Why do you put up this show of independence in the body? Will a member of Cabinet go against the Prime Minister?” the bench asked.

“What troubles us prima facie is why there is an executive veto?” it remarked, adding that the inclusion of the Leader of Opposition in the panel would become meaningless if the outcome was predetermined.

During the hearing, the Justice bench repeatedly underlined the importance of maintaining an independent ECI, stating that free and fair elections form part of the Constitution’s basic structure.

“Free and fair elections have been held to be part of the basic structure. That can be accomplished by an independent ECI. Now ECI can only be independent if it has independent commissioners,” the apex court observed.

“It is not sufficient that the Election Commission is independent. It must appear to be independent also,” it added.

During the hearing, the bench clarified that it was not attempting to formulate legislative policy, but was only examining whether the law met constitutional standards under Articles 14 and 324 of the Constitution.

“We are not here to provide a solution. We are only here to test whether the law is good in the angle of Article 14 or not. This is our limited job,” it stressed.

In March 2023, a Constitution Bench of the Supreme Court had directed that appointments to the Election Commission be made by the President on the advice of a panel comprising the Prime Minister, the Leader of Opposition, and the Chief Justice of India, as an interim arrangement till the Parliament enacted a law. Subsequently, Parliament enacted the 2023 legislation, replacing the CJI in the selection committee with a Union Cabinet Minister nominated by the Prime Minister. In March 2024, the apex court had declined to stay appointments made under the new law while issuing notice on petitions challenging its constitutional validity.

IANS