'Allows Executive To Influence ECI Composition': Lok Sabha MP Mahua Moitra Approaches Supreme Court Against Election Commissioners' Law

Lok Sabha MP Mahua Moitra has approached the Supreme Court in support of the petitions challenging constitutionality of the Chief Election Commissioner and Other Election Commissioners Act, 2023 which removed the Chief Justice of India from the selection panel appointing Election Commissioners (ECs).

Seeking intervention, the Trinamool Congress MP alleges constitutional infirmities in the Act and suggests alternative models of selection/appointment of CEC/ECs with inbuilt constitutional safeguards. The impugned Act is a "deliberate attempt to usurp the independent functioning of an institution responsible for conducting free and fair elections, and directly transgresses elementary constitutional principles", she says.

In the context of Section 7 of the Act, the MP asserts that it allows an Executive-dominated Selection Committee to constitute the EC by recommending appointment of the Chief Election Commissioner and other ECs. "In doing so, the Impugned Act allows the Executive to influence the composition of the EC and defeats the now well-established principle of free and fair elections, which requires an insulated, nonpartisan and fiercely independent EC to conduct and supervise the election process."

It is further claimed that by making an Executive dominated Selection Committee, the Act has turned on its head the legislative intent of Article 324(2) of the Constitution, which provides that appointment of the CEC and ECs shall be made by the President, "subject to the provisions of any law made in that behalf by Parliament". As per the MP, the phrase "subject to the provisions of any law made in that behalf by Parliament" was inserted as a measure of constitutional safeguard against Executive abuse.

Lack of substantive Parliamentary oversight and loss of public trust

Moitra points out that 141 members of the Parliament neither had the opportunity to deliberate on the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 nor could vote on its provisions. While 97 Opposition members in Lok Sabha remained suspended for alleged 'misconduct' in the 2023 winter session, 45 members remained suspended in Rajya Sabha at the time of passing of the Bill.

"Thus, a law specifically intended to provide Parliamentary supervision was passed without taking into account the extensive views of the members of the Parliament", the application states.

The MP further avers that the Act has resulted in the loss of public trust in EC. Citing the CSDS-Lokniti 2019 pre-poll survey, she mentions that while 51% survey respondents trusted the EC, the figure fell down to 28% in 2024. Similarly, while only 12% respondents responded negatively about having trust in the EC in the 2019 pre-poll survey, the figure rose to 23% in 2024. "Fairness of institutions is measured by public perception of the electorate", Moitra says.

Recommendations

To ensure a "fair non-executive dominated selection procedure for the CEC/ECs", Moitra recommends:

(i) that the selection panel be comprised by the Prime Minister, the Chief Justice of India and the Leader of the Opposition (as stipulated by Constitution Bench of Supreme Court in Anoop Baranwal v. Union of India);

(ii) that the selection panel include only the Prime Minster and the Leader of Opposition (or the leader of the largest opposition party in the Lok Sabha), as a decision by consensus by the leader of the ruling government and the opposition will ensure that the person selected is not partisan to either and would also prevent any lobbying of judicial functionaries by keeping the CJI out of the appointment process;

(iii) that the names recommended by the selection panel for the post of CEC/EC be approved by a 2/3rd majority of the Parliament so that there is material legislative supervision and even members of Opposition are on board with the recommendations made.

The application has been drawn by Advocate Harshit Anand, settled by Senior Advocate Shadan Farasat and filed through Advocate-on-Record Talha Abdul Rahman.

Background

The existing pleas before the Supreme Court challenge constitutionality of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which removed the Chief Justice of India from the selection panel appointing Election Commissioners (ECs).

The Election Commissioners' Act was passed by the Parliament in December 2023, few months after the Supreme Court in March 2023 ruled that ECs should be appointed by a panel comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India till a law is enacted. The Court passed this direction to ensure that the ECs are appointed in an independent manner, free of influence by the executive.

According to the Act, Election Commissioners are selected by a committee consisting 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.

The enactment of the Election Commissioners' Act triggered a cascade of litigation, with Congress leader Jaya Thakur, the Association for Democratic Reforms, and others approaching the apex court.

In March, 2024, a bench comprising Justices Sanjiv Khanna (now CJI) and Dipankar Datta refused to stay the CEC Act. During the hearing, the Bench remarked that there were two aspects in the matter - one being whether the Act itself was constitutional and the other being the procedure adopted.

Case Title: Dr Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024 (and connected cases)