Supreme Court hears challenge to 2023 law on Election Commission appointments, examines validity of excluding CJI from selection panel.

The Supreme Court on Wednesday observed that the judgment requiring the Chief Justice of India (CJI) to be part of the selection process of the chief election commissioner (CEC) and election commissioners cannot apply to the law enacted by the Parliament as the court verdict was only meant to fill a legal vacuum.

Setting out to hear a clutch of petitions challenging the validity of the CEC and other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023, the court noted that the selection committee under the Act comprises the Prime Minister, Leader of Opposition in Lok Sabha and a Cabinet Minister. The petitioners argued that the law altered the requirement under the 2023 judgment by a five-judge bench in Anoop Baranwal case which included CJI as part of the high level selection committee. The law, however, replaced CJI with a Union Cabinet minister. The petitions alleged that the judgment ensured independence in the selection process while the law gave the executive a major say in the appointment to a vital post.

o be sure, the judgment came before the law, a point the court noted.

The bench of justices Dipankar Datta and SC Sharma said, “The 2023 judgment, on its bare reading, deals with a situation where it seeks to fill a vacuum. Can we extend it beyond a point when the judgment restricts itself to the point till when the Parliament makes a law?”

However, the court termed the issue “important” and agreed to hear the petitioners on this issue who claimed that the judgment was binding on Parliament and the law cannot prevail over it unless the basis of the judgment is removed. This, they argued, can only be done by bringing a constitutional amendment.

Under Article 324(5) of the Constitution, Parliament can bring a law to govern the conditions of service of election commissioners. The 2023 judgment noted that such a law governing appointment of CEC/ECs was not brought since Independence and went on to issue directions by forming a selection committee, on the lines of selection of the CBI Director and the Chief Vigilance Commissioner. In these two appointments too, the CJI is part of the selection committee. But even then, the court acknowledged the rights of Parliament.

On Wednesday, the bench said, “It is the prerogative of the Parliament to make laws. For seven decades, Article 324(5) remained on paper. Realising this, the court had said that till a law is passed, some norms have to be laid down. Once the law is framed, can you say that the mandate under the judgment has not been followed?”

Senior advocates Vijay Hansaria and Gopal Sankaranarayanan who opened arguments for the petitioners said: “The law cannot be such that allows the government of the day to decide who will become the CEC and ECs. The Constituent Assembly debates show that the election commission was meant to be independent over which executive has no control. But this law allows the PM and his minister to choose a person as CEC or EC.”

Sankaranarayanan gave the example of how the Supreme Court devised the concept of Collegium for appointment of judges to constitutional courts. He said that when this law was sought to be amended by Parliament by enacting the National Judicial Appointments Commission Act (NJAC), it was brought along with a Constitutional amendment by getting two-third state legislatures to back it. He said, “Independent bodies must be manned independently. The 2023 judgment placed CBI, CVC and Election Commission in one bucket and realised that for the first two, there was independence in selection but not for the third and went on to issue directions.”

The petitions have been filed by Association for Democratic Reforms (ADR), Congress leader Jaya Thakur among others.

Hansaria said, “Today, one is pained to hear the slogans shouted at public meetings against the CEC and ECs. It is unfortunate that such constitutional functionaries are being called names by political parties against whom no action is being taken.”

Solicitor general Tushar Mehta appearing for the Centre said, “This argument cannot be accepted. If a judge uses abusive language against the Collegium which appoints him, do we say that the Collegium is bad?”