New Delhi: The Supreme Court Thursday asked why a Union Cabinet minister should be part of the three-member panel that selects the Chief Election Commissioner (CEC), even as the central government asked the two-judge bench to refer the batch of petitions challenging the new law appointing the poll body chief to a five-judge bench.
The bench of justices Dipankar Datta and S.C. Sharma made the observations when Attorney General of India (AGI) R. Venkataramani submitted that the independence of the CEC and Election Commission (ECI) is determined by actions of the CEC post appointment.
“It is not sufficient to be independent, but it has to appear to be independent,” remarked the two-judge bench, prompting the AGI to make the above comment.
Following Venkataramani’s explanation, the bench touched upon how the appointment of the CEC should portray an independent decision-making process, promising electoral integrity. “The level of confidence [in the CEC appointment] must be to that degree as if there had been a third neutral person in the selection committee,” Justice Datta said.
He then added: “Somebody who is a neutral person, he should select. Why should it be a minister from the Cabinet?”
However, the bench prima facie agreed with the Centre’s contention that the batch of petitions challenging the constitutional validity of the CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, should be referred to a larger bench.
The petitions contend that the 2023 legislation violates a constitution bench judgment of the Supreme Court in Anoop Baranwal case that devised a procedure to choose the CEC. Under the outlined mechanism, a panel headed by the Prime Minister and comprising Lok Sabha Leader of Opposition and the Chief Justice of India would select the poll body chief.
It was clarified in the judgment that the court-directed setup was to fill legislative vacuum in the appointment process and would remain in operation until Parliament frames a law.
Soon, thereafter, the Parliament passed the 2023 legislation, replacing the CJI with a Union Cabinet minister in the selection panel. Petitioners, including the Association for Democratic Reforms (ADR), have argued in their petitions that the new law compromises the EC’s independence since it allows executive dominance,
This, they have argued, violates the apex court’s 2023 ruling that called for a neutral panel.
Responding to the allegations, the AGI submitted that the Anoop Baranwal judgment was a matter of history because it had lost its binding precedent value.
“When we are asking the court to say which model can be adopted, we are actually converting the court into a parliamentary debate. With great respect for the past two or three days this court witnessed a very interesting parliamentary debate,” he said, taking a dig at the petitioners who argued at length against the law.
The bench, however, told the top law officer of the government that it would not base its decision on what was mentioned in the Anoop Baranwal judgment, but confine itself to interpret the law and its constitutionality.
The petitioners, the court pointed out, have asserted that the Act violates Article 14 of the Constitution, dealing with equality. “If we are with them, we will say that for xyz reasons we feel that Article 14 is violated,” the bench told the AGI.
Venkataramani said the argument on having an independent body cannot mean that Parliament’s hands are tied down. “If you tie it down then there is no democracy,” he submitted. His plea to refer the matter to a five-judge bench was met with objections.
The issue on CEC’s appointment was already covered by previous constitution bench judgments, besides the one in Anoop Baranwal case, the bench noted.
Senior advocate Gopal Sankaranarayanan, appearing for one of the petitioners said issues before the bench were about breach of constitutional provisions and not interpretation. “Otherwise, every case in which there is alleged violation of Article 14 will have to go to five-judges.”
The court is yet to conclude hearings in the case and is likely to take it up again next week.
(Edited by Amrtansh Arora)
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