The Supreme Court on Thursday flagged serious concern over the selection committee for the appointment of the chief election commissioner and other ECs set up under the 2023 law, which it said appeared to ensure that the Opposition leader's role was only “ornamental” and place effective control with the executive.
“Let's say that today if the Prime Minister picks one and the leader of the Opposition (LoP) picks another one and there is a disagreement. In such a case, will the third member (cabinet minister) go towards the LoP?” the bench of Justices Dipankar Datta and Satish Chandra Sharma asked attorney-general R. Venkataramani during a hearing.
“I agree, it may not be in all practicality,” Venkataramani replied. Justice Datta, heading the bench, observed: “Then it means the executive is controlling everything in the selection process.”
The bench was dealing with a batch of PILs challenging the Centre's decision to exclude the Chief Justice of India from the selection panel.
The PIL petitioners, including Madhya Pradesh Congress leader Jaya Thakur, ADR, Trinamool Congress leader Mohua Moitra and NGO Lok Prahari, had challenged the 2023 legislation on the ground that it was contrary to a judgment delivered by a five-judge constitution bench in the Anoop Baranwal case.
In that case, the apex court had mandated the inclusion of the Prime Minister, the CJI and the LoP in the selection panel. The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, had replaced the CJI with a “cabinet minister”.
On February 17 last year, the Centre proceeded with the appointment of Gyanesh Kumar as the CEC despite the top court being seized of the matter. On Thursday, the bench expressed reservation over the absence of any independent member in the selection panel, even as it clarified that the court was not insisting that the CJI should be a member of the process.
“…For the selection of a CBI director, the CJI is part of the selection committee. CBI... we can say for the maintenance of law and order. Or you can even stretch it to the ‘rule of law’. But not for democracy? (in the case of CEC/ECs). Not for ensuring pure elections? We are not saying the CJI should be there. But why shouldn’t there be an independent member?" Justice Datta asked Venkataramani.
“The third member should be somebody who is a neutral person. Why should it be a minister from the cabinet?” the court asked.
Venkataramani argued that the Anoop Baranwal judgment was not binding on Parliament as it was delivered when there was no specific law governing the appointment of poll commissioners. He said the constitution bench had also held that the ruling would be in force till Parliament enacted suitable legislation on the issue.
Former civil servant and founder of NGO Lok Prahari S.N. Shukla submitted that the appointment of CEC Gyanesh Kumar and EC Sukhbir Singh Sandhu was improper because it was made on political considerations and they did not have any prior experience in dealing with elections.
When Justice Datta indicated that the court might consider referring the matter to a constitution bench, advocate Prashant Bhushan, appearing for ADR, opposed the move. The arguments will continue next Tuesday.