Supreme Court Refuses To Stay Election Commissioners' Act Dropping CJI From Panel To Select CEC & ECs

Thakur, the general secretary of the Madhya Pradesh Mahila Congress Committee, has argued against, among other things, the contentious removal of the chief justice, alleging that this is ultra vires Articles 14, 21, 50 and 324 of the Constitution inasmuch as it violates the principles of free and fair election. She has also relied on the Supreme Court's March ruling in Anoop Baranwal mandating the inclusion of the chief justice in the appointment process till the Parliament enacted a law regulating it in view of the need for an independent and unbiased selection panel.

The election commissioners' act, which received approval from the Lok Sabha on December 21 and the Rajya Sabha on December 12, replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, introducing key changes to the appointment, salary, and removal procedures for top election officials. The most notable feature of the new legislation is that the President would appoint the election commissioners on the strength of a selection committee's recommendation, prepared after considering a list of candidates proposed by a search committee headed by the union law minister. According to Section 7, the selection committee would consist of the prime minister, a union cabinet minister, and the leader of the opposition or the leader of the largest opposition party in the Lok Sabha. Section 8 empowers the panel to regulate its own procedure in a transparent manner, and even consider persons other than those suggested by the search committee.

This legislative development came after a constitution bench led by Justice (Retd) KM Joseph directed election commissioners to be appointed by the President of India on the advice of a committee consisting of the prime minister, the leader of the opposition or the largest opposition party, and the chief justice. The new law excluding the chief justice from the selection committee triggered a barrage of criticism from the opposition for alleged executive overreach and encroachment on the election commission's autonomy. Those critical of the bill also argued that this diminished the election commission's institutional legitimacy, and was contrary to the constitution bench's judgment.

However, during the parliamentary debate this session, Law Minister Arjun Ram Meghwal defended the move, saying that the appointment of election commissioners - which was earlier not governed by any specific provision under law - was an important responsibility of the executive. The minister said, "This is an important executive function. The architects of our Constitution enshrined the separation of powers in Article 50. The executive should do the executive's job, the judiciary should do the judiciary's job, and the legislature should do the legislature's job."

The Congress leader, in her petition, has raised apprehensions that the impugned sections would "destroy the democracy in our country" and nullify the Supreme Court's judgments on institutional independence, fairness and transparency in appointment processes, free and fair elections, and the rule of law. The petition states -

"[The union government] is compromising free and fair election by excluding the chief justice from the committee. The prime minister and their nominee always [being the] deciding factor, all the appointments will be done through the ruling party...Hence this process cannot be said to be free and fair and it violates the principle that justice should not only be done, but it must be seen also...Democracy is a part of the basic structure of our Constitution and the rule of law and free and fair election are basic features of democracy. The [union government] is destroying the basic structure of our democracy by misusing enforcement agencies against political opponents. The Supreme Court in the number of the cases held that the appointment to these agencies must be done in a fair and transparent manner. If their appointments is done in a biased nature, then they can be used as tools...The impugned Sections 7 and 8 of the act are destroying the democratic process of our country."

In related news, a public interest litigation (PIL) petition has been filed in the Supreme Court last week asking for the setting aside of a December 28 gazette notification for the appointment of chief election commissioner and other election commissioners in terms of the election commissioners' act. The petitioners, regular practising advocates, have argued for the implementation of an independent and transparent selection system, constituting a neutral committee for appointing the chief election commissioners and other election commissioners, and the inclusion of the Chief Justice of India in the selection panel.