CJI’s role in CEC, EC appointments was temporary, pending new law: SC

CJI’s role in CEC, EC appointments was temporary, pending new law: SC

The Supreme Court on Wednesday said the Chief Justice of India’s involvement in the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) was only meant to last until Parliament came up with a law.

The court’s observation was in response to multiple petitions challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023.

The petitioners, who include the Association for Democratic Reforms and activist Jaya Thakur, said the 2023 law clothed the political executive of the day with a dominant, if not “exclusive”, control over the appointment of the CEC and ECs.

The law was introduced in December 2023, ostensibly to countermand a Constitution Bench judgment in March the same year. This judgment had declared that CEC and EC appointments should be made on the recommendation of a committee of the Prime Minister, the Leader of the Opposition of the Lok Sabha (LoP) or the leader of the largest Opposition party in the Lok Sabha, and the Chief Justice of India (CJI).

The court had ordered that its judgment would remain operative till “Parliament makes a law in consonance with Article 324(2) of the Constitution”.

Consequently, the government brought the 2023 Act, replacing the CJI with a Union Cabinet Minister in the committee. The current CEC, Gyanesh Kumar, was the first to be appointed to the office under the new law.

‘Prime Minister’s man’

On Wednesday, senior advocate Vijay Hansaria, appearing for the petitioners, said the Constitution framers and the Supreme Court itself had never intended the CEC to be the “Prime Minister’s baby or the Prime Minister’s man”.

Mr. Hansaria submitted that both the Constitution framers and the Supreme Court had warned against leaving the appointment of Election Commissioners exclusively in the hands of the executive.

He referred to the Supreme Court’s own observations in the March 2023 Constitution Bench judgment (Anoop Baranwal v. Union of India) that the “fierce independence, neutrality and honesty” envisaged in the institution of the Election Commission required an end to government monopoly and “exclusive control” over appointments to the highest poll body.

Prior to the judgment, the CEC and ECs were appointed by the President on the advice of the Prime Minister. The judgment had brought the appointment process on par with that of the CBI Director.

However, Justice Datta highlighted that even the Supreme Court had only intended the judgment to be operative till Parliament passed a law.

“Are you saying Parliament did not have the power to make the law? Or can a mandamus be given to Parliament to make a law only in a certain way?” Justice Datta asked.

Senior advocate Gopal Sankaranarayanan, also for the petitioners, said their case was not just about the replacement of the CJI with a Cabinet Minister in the committee. It was also about the constitutionality of an Act which had effectively reverted the control over the appointment of CEC and ECs to the Executive.

“The point is Election Commission appointments cannot be under the control of the executive,” he submitted.

Mr. Sankaranarayan said the Anoop Baranwal judgment had addressed a “legislative vacuum”. Before March 2023, appointments of the CEC and ECs were made by the President on the advice of the Prime Minister. The “arrangement” had ensured that the power of appointment rested with the Political Executive.

“This mechanism ought to have stopped in the 1950s, but whichever parties came to power found the arrangement convenient,” Mr. Sankaranarayanan said.

Arguments would continue on Thursday.