Supreme Court weighs in on appointment of CEC, EC

The Supreme Court on Thursday said free and fair elections are a part of the basic structure of the Constitution, and this cannot be ensured unless the Election Commission of India (ECI) is independent and also appears to be independent.

A Bench comprising Justices Dipankar Datta and Satish Chandra Sharma made the observations during the final hearing on a batch of six petitions challenging the constitutional validity of a new law governing the appointment of the Chief Election Commissioner (CEC) and the Election Commissioners (EC). The law replaces the Chief Justice of India with a Union Cabinet Minister on the three-member selection committee for CEC and ECs.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into force on January 2, 2024, mandates that the CEC and the ECs are appointed by the President on the recommendation of a selection committee consisting of the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition in the Lok Sabha.

While hearing the submissions of Attorney General (AG) R Venkataramani on behalf of the Union Government, Justice Datta said, “It is not sufficient for the Election Commission to be independent; it has to appear to be independent.” The AG mounted a robust defence, asserting that Parliament has the absolute right to legislate and is not bound to follow the “stop-gap” arrangement suggested by a five-judge bench in the AnoopBaranwal judgment. The Baranwal judgment was an exercise of Article 142 (discretionary power to do complete justice) and did not constitute a binding law under Article 141 that could override an Act of Parliament. The Government's counsel said the Bench should not strike down a law based on hypothetical bias.

“We have to eat the pudding to know if it is bad. Unless the ECs demonstrate a lack of independence in their actual functioning, the law cannot be held invalid,” Venkataramani said. He cautioned the Bench against “entering the legislative arena” or acting as a “second chamber of Parliament.”

Justice Datta said independence of the ECI is a facet of the “basic structure” of the Constitution, as free and fair elections depend on it. “The level of confidence must be to that degree (that it must appear) as if there had been a third neutral person in the selection committee. Why should it be a minister from the cabinet?” the bench asked.

Referring to the attorney general's submissions on judicial overreach, Justice Datta emphasised the mutual respect between the organs of the State. “Parliament may attribute anything to the judiciary, but we know our <LakshmanRekha></i>. We will never do that,” he said.

“Their (the petitioners') first prayer is against the validity of the law. If that fails, no other prayer survives,” the AG submitted. “The question whether the Election Commission is independent cannot be answered in the abstract. It is a question of fact and evidence,” he argued, “If the court decides what the best manner to appoint election commissioners is, then the court enters the legislative arena.”

As the hearing progressed, the bench discussed the possibility of referring the matter to a larger five-judge constitution bench under Article 145(3), noting that the case involves a “substantial question of law” regarding the interpretation of Articles 14 and 324.

The hearing remained inconclusive and is set to continue.