New Delhi: The Supreme Court on Thursday questioned the structure of the committee responsible for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs), expressing concern that the existing mechanism gives the executive excessive influence over an institution central to the country’s democratic process.
A bench comprising Justices Dipankar Datta and Satish Chandra Sharma was hearing petitions challenging the validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
During the proceedings, the court drew a comparison between the appointment process for the CBI Director and that of the Election Commission. Justice Datta pointed out that while the Chief Justice of India (CJI) is part of the panel selecting the CBI Director, no such independent constitutional authority is included in the committee choosing the country’s top election officials.
“What about democracy?” the bench remarked while discussing the issue.
“I was wondering. For a CBI director, CJI is there. We can say for maintenance of law and order. Or you can stretch it to rule of law also. But not for maintaining democracy? Not for ensuring pure elections?” Justice Datta observed during the hearing.
The bench clarified that its concern was not limited to the exclusion of the CJI alone, but extended to the absence of any neutral or independent voice in the selection process.
“We don’t say CJI should be there. But why shouldn’t there be an independent member? Why should it be from the ministry? Let us be very clear. Today Prime Minister picks one. And Leader of the Opposition (LoP) picks another one. There is disagreement. The third member will go towards the LoP?” the judge asked.
The 2023 law provides that the appointment panel will consist of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. Petitioners opposing the law have argued that the arrangement effectively ensures a majority for the government in every appointment decision.
Responding to the court’s observations, Attorney General R Venkataramani said he would not speculate on how members of the panel might vote in practice.
"May not be in all practicality. I don’t want to second guess that,” he said.
Justice Datta replied, “Then it is the executive who is controlling everything.”
The bench also observed that under the current framework, decisions are likely to be determined through a 2:1 majority, with little possibility of disagreement between the Prime Minister and the nominated Cabinet Minister.
“What troubles us prima facie is why is there an executive veto? After all these precedents was the parliament not aware of these cases? Parliament has the power to frame the laws. But the Supreme Court is the final arbiter. It will have the power to interpret the laws whether you like it or not,” Justice Datta said.
The petitions before the court challenge the 2023 legislation on the ground that it departs from the principles laid down by the Supreme Court in the Anoop Baranwal judgment delivered in 2023. In that verdict, the apex court had directed that appointments to the Election Commission should, until Parliament enacted a law, be made by a committee comprising the Prime Minister, the Leader of Opposition, and the Chief Justice of India.
Several petitioners, including civil society organisations and rights groups, have contended that the present law weakens institutional independence and undermines safeguards intended to keep the Election Commission insulated from executive interference.
The matter will continue to be heard by the Supreme Court in the coming days.