Wrong to assume that PM will act against 'democracy': Union Gov to SC on CEC selection

Defending the law for regulating appointment procedures of the CEC and the deputies, the Union Government on Thursday, July 30, told the Supreme Court that it would be wrong to assume that the prime minister and the other ministers would act in "bad faith" and against "democracy" because they have a numerical majority in the selection procedure.

Solicitor General Tushar Mehta submitted before the top court that the office of prime minister has a "sanctity attached" to it and doubting the decision of the selection committee would undermine the constitutional trust reposed in elected institutions.

"If his decision is not to be trusted and is to be seen as necessarily a bad-faith exercise, then why not have a provision that even while selecting his Cabinet, he must consult some former judge or outsider?" Mehta told a bench comprising Justices Dipankar Datta and Satish Chandra Sharma.

The top court was hearing a clutch of petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which excludes the Chief Justice of India (CJI) from the selection panel for appointing election commissioners.

Mehta said the matter should be referred to a larger bench under Article 145(3) of the Constitution as the matter involves a substantial question of law on constitutional interpretation.

Elaborating his argument, Mehta contended that the moment the court says the selection committee is not adequate, the wisdom of Parliament is being doubted and the constitutional trust doctrine comes under the dock.

"When the executive wants to participate in the selection of another organ, it becomes a question of independence of another organ. Can it be said to the judiciary then that we will not trust your appointments because there is no outsider? This is not adversarial. I am just saying this as a student of law," Mehta said.

At this juncture, Justice Datta said, "As you said judges select judges, we wonder whether judges select judges nowadays."

Mehta said that the executive and the legislature are the only branches which are directly accountable to the people.

Responding to his submission, the bench referred to Dr BR Ambedkar's statements and pointed to the criminal background of lawmakers and ministers across the country.

"One-and-a-half years before his death, Dr Ambedkar said democracy failed in India. These are all utopian ideas... Dr Ambedkar passed away in 1955-56... Just give us the figures in how many states there are ministers who have cases," the bench remarked.

Justice Datta also remarked that the issue was not about distrusting the prime minister.

"We would trust the prime minister. But this has not happened over the years. I rest at that. Now it's 2:1. Two on the side of the PM and one on the side of the opposition.

"The election commissioner is supposed to be an independent person. Should the committee not have any show of fairness? We are not saying fairness is not being achieved. But it has to be shown," Justice Datta said.

As the hearing commenced, Attorney General R Venkataramani submitted that the issues arising from the 2023 Anoop Baranwal judgment involved important constitutional questions which need consideration by a larger bench.

The top court, after hearing the parties, reserved its judgment on whether the pleas challenging the law for regulating appointment procedures of the CEC and the deputies need to be referred to a larger five-judge bench.

The issue of reference was opposed by lawyers appearing for the petitioners in the case.

Under the 2023 Act, the selection committee consists of the prime minister, a Union minister nominated by the prime minister and the leader of opposition (LoP) or leader of the largest opposition party in the Lok Sabha.

The PILs said the exclusion of the CJI from the panel undermines the independence of the appointment process.

The law has been challenged by multiple petitioners, including Congress leader Jaya Thakur and the Association for Democratic Reforms (ADR).

The law, enacted by Parliament in December 2023, came months after a landmark verdict by which the apex court directed that election commissioners be appointed by a committee comprising the prime minister, the LoP and the CJI.

Earlier, the Centre defended in the Supreme Court the appointment of two new election commissioners under the 2023 law that excludes the CJI from the selection committee, saying the independence of the Election Commission does not arise from the presence of a judicial member on the committee.

In an affidavit filed in the apex court, the Union law ministry rejected the petitioner's claim that the two election commissioners were hastily appointed on March 14, 2024 to "pre-empt" the orders of the top court the next day, when the matters challenging the 2023 law were listed for hearing on interim relief.

The apex court also refused to stay the appointment of new election commissioners under the 2023 law.

A five-judge Constitution bench had in March 2023 ruled that the CEC and election commissioners shall be appointed on the advice of a committee comprising the prime minister, the LoP in the Lok Sabha and the CJI.