'Election Commission's Independence Doesn't Arise From Presence Of Judicial Member In Selection Panel' : Centre Tells Supreme Court

In an affidavit sworn by an additional secretary in the law ministry, the union government denied the petitioner's allegation that the two Election Commissioners were hastily appointed on March 14 to pre-empt any orders passed by the Court on the next day, when the matters were listed for hearing on interim relief.

“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.”

This affidavit has been filed in response to interlocutory stay applications filed by Congress leader Jaya Thakur and the Association for Democratic Reforms in pending legal challenges against the 2023 Act. The crux of the batch of petitions revolves around the contention that the election commissioners' act overturns the constitution bench decision in Anoop Baranwal (2023).

In this case, it was observed that leaving the appointment of election commission members in the hands of the executive would be detrimental to the health of democracy and the conduct of free and fair elections. Accordingly, the court had directed that appointments to the posts of chief election commissioner and election commissioners should be made by the president on the basis of the advice tendered by a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India.

Marking a stark departure, the 2023 Act replaces the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister. The petitioners argue that this change makes the selection process vulnerable to executive influence.  

The judgment in Anoop Baranwal provided for a 'stop gap' arrangement to fill what it thought was a 'vacuum' until the Parliament stepped in, the affidavit states. It adds –

“…Where the Constitution itself specifically vests Parliament with the power to decide upon the appointments of the election commissioner and Parliament exercises this power, no question of legislative overruling can arise. The judgment in Baranwal was conscious of the fact that the ultimate decision-making power in this regard lay with Parliament and so it had consciously evolved a time-limited mechanism for appointments to the Election Commission of India. This mechanism was to last only till the time that Parliament made a law on the subject. As the law, as contemplated in the Constitution, is now in force, it cannot be challenged for not being identical to the Baranwal mechanism.”

Among other things, the Centre has argued that the 2023 Act is a significant improvement in the appointment process of election commissioners, asserting that it provides for a more democratic, collaborative, and inclusive exercise. It has also underscored the act's purported alignment with the principles laid down in the Anoop Baranwal case, stressing that the legislation is in harmony with the constitutional framework.

The Centre contended that the petitioners' case is based on a "fundamental fallacy" that the independence of an institution can be maintained only when the selection committee is of a "particular formulation".

".. 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 said.

Further, it has sought to dismiss claims of executive overreach and encroachment on the Election Commission's autonomy. Addressing the contention regarding the Chief Justice of India being dropped from the selection panel, the Centre has argued –

“To indicate, as the petitioners suggest, that selection committees without judicial members, would invariably be biased is wholly incorrect. It is submitted that such an argument would read an implied limitation into the otherwise plenary power of Article 324(2), which is impermissible. 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 protections that are in-built into the Constitution, and which enable them to act impartially.”

The Centre's affidavit seeks to dispel any notions of bias or ulterior motives in the appointment process of Election Commissioners. It argues that the Election Commission, as a high constitutional office, has inherent protections in the Constitution to ensure impartiality. The affidavit asserts, "The Chief Election Commissioner may not be removed from office except in like manner to a Supreme Court Judge."

“…A political controversy is sought to be created only on the basis of bare, unsupported and pernicious statements about certain vague and unspecified motives behind the appointment. Where no question has been raised about the qualifications of candidates to hold a constitutional post nor has any material been brought on record to show that the candidates are unfit for office, no prima facie case can be said to have been made out,” the affidavit insists at the end, urging the Supreme Court to dismiss the pleas for staying the new election commissioners' act.

The Centre argued that high constitutional functionaries must be presumed to act fairly. The Centre also invoked the doctrine of presumption of constitutionality of legislation to oppose stay.

The Supreme Court is set to hear on March 21 the pleas to stay the new law that removes the Chief Justice of India from the selection panel appointing election commissioners. These stay applications were filed in the wake of the resignation of former Election Commissioner Arun Goel. During previous hearings, the apex court, while agreeing to consider the issues raised in these petitions, consistently refused to issue an immediate stay on the legislation.

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