New Delhi: It is “very unfortunate” that successive governments in India failed to frame a law to ensure independent functioning of the Election Commission (ECI) until the top court delivered a judgment in this regard in 2023, the Supreme Court observed Thursday.
The bench of justices Dipankar Datta and S.C. Sharma was hearing a batch of petitions challenging the CEC and Other Election Commissioners (Appointment, conditions of service and term of office) Bill, 2023.
“Why did Parliament not make a law before Baranwal [judgment]?” the bench asked advocate Prashant Bhushan, appearing for one of the petitioners, Association for Democratic Reforms (ADR), referring to the Supreme Court judgement in Anoop Baranwal vs Union of India (2023).
Pertinently, the petitioners before the court have challenged the new law on the ground that the appointment process outlined in it violates the 2023 ruling, as it excludes the Chief Justice of India (CJI) from the process of appointment of the members of the EC.
In response to the court’s query, Bhushan said successive governments took advantage of the legislative vacuum. Those who were in opposition and clamored for an independent body have stopped bothering about it upon coming to power, he told the bench.
This prompted Justice Datta to observe orally: “I am reminded of a parliamentarian saying tyranny of the unelected. This should be equated with tyranny of the elected.”
Bhushan called it “tyranny of the majority,” prompting Justice Datta to remark: “Whoever comes to power is doing the same thing. It is unfortunate for the country. I saw a video of the BBC on Dr Ambedkar. Within three years of the Constitution, he said that democracy is not working in this country.”
Responding to the judge’s lament, Bhushan said fundamental rights were included in the Constitution to ensure there is no tyranny of the majority.
“There are many problems. This court took great pains to set things right. When in opposition they are talking about it, when they came to power they forgot about it,” Bhushan said, in a dig at the BJP government in power.
Notified in 2023, the law to select the Chief Election Commissioner and Election Commissioners requires a Selection Committee comprising the Prime Minister (PM), a Union Cabinet Minister and the Leader of Opposition in Lok Sabha.
This provision is antithetical to the principle of free and fair elections since it does not provide an “independent mechanism” for appointment of the members of the ECI, the petitioners have asserted in their respective pleas before the apex court.
The new law also dilutes the Supreme Court’s judgment in Anoop Baranwal vs Union of India, they have submitted. According to them the Prime Minister and his nominee will always be “the deciding factor” in the appointments.
Thursday was the second day of the hearing in the matter.
On Wednesday the bench had declined to adjourn the case when a request was made on behalf of the central government.
At the outset, the court Thursday clarified that its judgment in Anoop Baranwal case was a stopgap arrangement till Parliament framed a law. The judgment mandated the CJI’s presence in the selection committee to choose the CEC and EC.
It said: “Anoop Baranwal was to operate in the interregnum. Till Parliament frames the law. Is there any observation in the judgment that when Parliament frames the law, our observations must be kept in mind? They could have said so. The CJI being in the committee was operational only when there was a vacuum…”
Senior Advocate Vijay Hansaria, appearing for one of the petitioners, however, told the bench that it was the court’s duty to check whether the law framed post its judgement followed the constitutional norms. “Baranwal doesn’t just speak about composition. It said this is what the constitutional requirement is,” he said.
Taking the court through the constitutional requirement, he said the EC should be an independent body. Hansaria alleged the government rushed the selection of two new Election Commissioners on 14 March, 2024 because they knew the Supreme Court was scheduled to hear a plea for a stay on such appointments the very next day (15 March).
But, the court refused to get drawn into this allegation, saying the counsel has to satisfy the court about the motive he is attributing towards the government.
The court, however, remarked that it wished that judges’ appointments too are expedited as the CEC’s appointment.
(Edited by Amrtansh Arora)
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