Centre defends dropping CJI from selection panel for election commissioners

Satya Prakash

New Delhi, March 20

Defending the appointment of two new election commissioners under a 2023 law that excluded the Chief Justice of India from the selection panel, the Centre on Wednesday told the Supreme Court that independence of the Election Commission did not arise from a judicial member’s presence on the panel.

In an affidavit filed in response to petitions challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023, the Centre described the law under challenge as “a significant improvement in the appointment process of election commissioners”. The Centre said it provided for “a more democratic, collaborative and inclusive exercise.” It also refuted the petitioners’ claims of executive overreach and encroachment on the Election Commission’s autonomy, terming it “wholly incorrect”.

A panel led by Prime Minister Narendra Modi had on March 14 appointed Gyanesh Kumar and Sukhbir Singh Sandhu as Election Commissioners under the new law which was notified in the official gazette on December 28, 2023. Election Commissioner Arun Goel had resigned recently.

The Supreme Court on March 15 refused to stay the newly enacted law on appointment of the CEC and ECs in which the CJI has been replaced by a Union Cabinet Minister to be nominated by the Prime Minister in the three-member selection panel.

The Centre rejected the allegation of petitioner Association for Democratic Reforms and others that the two ECs were hastily appointed on March 14 to “pre-empt” any possible orders from the top court which was to take up the matter the next day.

“Keeping in mind the ensuing national general election of such wide magnitude, geographical width and amplitude, and simultaneous elections of four states, it would have been humanly not possible for one chief election commissioner to discharge his functions alone. Therefore, two election commissioners were appointed on March 14, who have assumed significant functional, administrative and policy responsibilities in the commission. The schedule for the national general elections was also announced on March 16 and the process has started,” the affidavit read.

The Centre said the petitioners’ case was premised on one fundamental fallacy that the independence can only be maintained in any authority when the selection committee was of a particular formulation.

“It must be noted that the independence of the Election commission, or any other organisation or authority, does not arise from and is not attributable to the presence of a judicial member in the selection committee,” the Centre submitted.

It said a political controversy has been sought to be created only on the basis of “bare, unsupported and pernicious” statements about certain vague and unspecified motives behind the appointment.

Asserting that the credentials of those finally appointed as election commissioners had at no point been called into question and no objection whatsoever has been raised about the fitness, eligibility or competence of any of the persons named in the list to serve as election commissioner, it urged the top court to dismiss the petitions.

The Centre said the names of short-listed persons were made available to Adhir Ranjan Chowdhury, leader of the largest opposition party in the Lok Sabha, on March 13 after the Search Committee had finalised six names for recommendation. “It is, therefore, wholly wrong, misleading and malicious to suggest that the third member of the Selection Committee was given the shortlisted names as an act of premeditation on the mind of the two members of the Executive as all the members received the list simultaneously.”

“The election commissioners have been able to function neutrally and effectively even during the era of full executive discretion in appointment. As a high constitutional office, the chief election commissioner enjoys protection that is in-built into the Constitution, and which enables them to act impartially,” it said.

Petitioner ADR has contended that the law was contrary to the Constitution Bench verdict which directed the inclusion of the CJI in the three-member selection panel to pick the CEC and ECs.

Ending the 73-year-old system of the government appointing the Chief Election Commissioner and Election Commissioners, the Supreme Court had on March 2 last year ordered creation of a three-member panel comprising the Prime Minister, Leader of Opposition in the Lok Sabha or leader of largest opposition party and the CJI to select them.

In a unanimous verdict, a five-judge Constitution Bench led by Justice KM Joseph (since retired) had, however, said, “This norm will continue to hold good till a law is made by Parliament.”