The court was hearing a batch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The Supreme Court on Thursday underscored the critical need for the Election Commission’s independence, questioning Parliament’s decision to keep the Chief Justice of India out of the selection panel for appointing the Chief Election Commissioner and Election Commissioners.
Observing that the Chief Election Commissioner holds one of the most important constitutional offices in a democracy, a bench of Justices Dipankar Datta and Satish Chandra Sharma asked whether the exclusion of the CJI could be justified, especially when the CJI is part of selection panels for other high offices like the CBI Director and Lokpal.
“Election Commissioner has to be an independent person. Should there not be a show of fairness? We are not saying fairness has not been achieved by this committee (sans CJI),” Justice Datta remarked during the hearing.
The court was hearing a batch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The law, which replaced an interim arrangement laid down by the Supreme Court in the Anoop Baranwal case, provides for a three-member selection committee comprising the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of Opposition in the Lok Sabha.
Defending the legislation, Attorney General R Venkataramani and Solicitor General Tushar Mehta argued that a constitutional court cannot proceed on the assumption that the Prime Minister or the executive would act in bad faith or against democratic principles.
Mehta contended that striking down the committee’s composition merely because the executive holds a majority would undermine the constitutional trust reposed in elected institutions.
He emphasised the “sanctity” of the office of the Prime Minister and cautioned against presuming mala fides on the part of constitutional functionaries.
“The office of the Prime Minister has a sanctity attached. If his decision is not to be trusted... then why not have a provision that even while selecting his Cabinet he must consult some former judge or outsider,” Mehta submitted.
The law officers pressed for the matter to be referred to a larger Constitution bench, arguing that the Anoop Baranwal judgment only provided an interim arrangement and did not curtail Parliament’s legislative competence under Article 324.
Justice Datta, however, pointed out the inconsistency in Parliament’s approach. While the CJI finds a place in selection panels for other vital posts, the same was not extended to the Election Commission, which plays a pivotal role in safeguarding democracy.
The bench also stressed that while it trusted the Prime Minister, the appointment process must not only be fair but also appear to be fair. “Justice is not only to be done, it has to be shown to be done,” Justice Datta observed.
The court reserved its order on the Centre’s plea to refer the issue to a Constitution bench. Petitioners, including MP Congress leader Jaya Thakur and NGOs like Association for Democratic Reforms and Lok Prahari, opposed the reference and sought hearing on merits.