The Supreme Court on Thursday asked the Central government why it was putting up a “show of independence” in appointing Election Commissioners by keeping the Leader of Opposition (LoP) in the selection committee.

The current panel to appoint the Chief Election Commissioner and other Election Commissioners comprises the Prime Minister, the LoP and a Union Cabinet Minister, giving control over the process to the executive.

A Bench of Justices Dipankar Datta and Satish Chandra Sharma remarked that while the Chief Justice of India was part of the committee appointing the CBI Director, no independent member had been included in the panel appointing Election Commissioners.

“I was wondering. For a CBI director, CJI is there. We can say for maintenance of law and order. Or you can stretch it to rule of law also. But not for maintaining democracy? Not for ensuring pure elections? We don’t say CJI should be there. But why shouldn’t there be an independent member?” Justice Datta observed.

The Bench then questioned the inclusion of a Union Cabinet Minister in the selection panel.

“Today, if the Prime Minister picks one. And Leader of Opposition (LoP) picks another one. There is disagreement. Will the third member will go towards the LoP?” the Court asked Attorney General (AG) R Venkataramani.

“May not be in all practicality,” the AG admitted.

“Then it is the executive who is controlling everything,” the Court remarked.

The Bench also questioned the rationale behind having the LoP in the committee if decisions would always go in favour of the executive by a 2:1 majority.

“Why do you then include the leader of the opposition? He’s ornamental. It will always be 2:1. Why do you put up this show of independence in the body? Will a member of cabinet go against the Prime Minister?” Justice Datta asked.

The Court was hearing petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The law provides for appointment of the CEC and Election Commissioners by a committee comprising the Prime Minister, a Union Cabinet Minister and the Leader of Opposition in the Lok Sabha.

The petitions contend that the law violates the constitutional requirement of an independent Election Commission by excluding the Chief Justice of India from the selection process.

The challenge stems from the Supreme Court’s 2023 Constitution Bench ruling in Anoop Baranwal v. Union of India, which had directed that appointments to the Election Commission would, until parliament enacted a law, be made by a committee comprising the Prime Minister, Leader of Opposition and the CJI.

During today's hearing, the Bench repeatedly stressed that the issue before it was whether the present law satisfied the constitutional requirement of an independent Election Commission under Articles 14 and 324 of the Constitution.

“Free and fair elections have been held to be part of the basic structure. That can be accomplished by an independent ECI. Now ECI can only be independent if it has independent commissioners,” the Court observed.

The Bench added that independence was not merely about actual functioning, but also public perception.

“It is not sufficient that the Commission is independent. It must appear to be independent also,” the Court said.

At another stage, the Court clarified that it was not attempting to dictate legislative policy, but was only examining whether the law passed constitutional muster.

“The sequitur is that parliament has to apply its mind. Let there be a proper debate. Hear the other side and then decide. If there is agreement, well and good. Otherwise, you vote. We are not here to provide a solution. We are only here to test whether the law is good on the angle of Article 14 or not. This is our limited job,” the Bench observed.

The Attorney General argued that the Court could not test the law merely on apprehensions that appointments under it may lack independence.

“We have to eat the pudding to know whether the pudding is bad or not,” he submitted.

Venkataramani further argued that the Anoop Baranwal ruling was only an interim arrangement issued in the absence of a law enacted by parliament.

“If Anoop Baranwal is not a declaration of law, then today your lordships are being asked to act as an executing court of what Anoop Baranwal has said,” he argued.

The Court, however, said that the Constitution Bench judgment had consciously exercised restraint and only laid down broad norms pending legislation by parliament.

“We feel that Anoop Baranwal is a classic case of judicial restraint and statesmanship. It consciously insulated itself from laying down a law under Article 141. If it had done so, it would have been accused of judicial legislation,” the Bench observed.

At one point, Senior Advocate Vijay Hansaria objected to the Attorney General’s remark that the hearing had begun resembling a parliamentary debate.

“I expect that we have the same discipline in parliament as we have here,” Hansaria said.

“We have more discipline,” Justice Datta remarked in jest.

When the AG said that arguments from the other side had cast aspersions on the intent of parliament is passing bills, the Court responded,

“How can we say for a moment that parliament had ulterior motives? We have mutual respect for the other organ...parliament may attribute anything to the judiciary. But we know our lakshman rekha. We will never do that,” the Court said.

The hearing also saw arguments over the process by which Election Commissioners Gyanesh Kumar and Sukhbir Singh Sandhu were appointed in March 2024.

Senior Advocates Vijay Hansaria and Gopal Sankaranarayanan questioned the timeline of the appointments and argued that meetings of the search committee and selection committee had been advanced shortly before the matter came up before the Supreme Court.

The Court asked the Union government to keep all records relating to the appointments ready.

“The provisions of the Act are to be followed to the teeth. Please keep all records ready,” the Bench said.

Retired IAS officer SN Shukla, appearing for NGO Lok Prahari, argued that the 2023 law amounted to a “fraud on the Constitution”. He contended that the search committee mechanism lacked political neutrality because the Union Minister heading it nominated the other two members himself.

Advocate Prashant Bhushan argued that several Constitution Bench judgments had already held that appointments to quasi-judicial bodies could not be controlled by the executive where the government itself was likely to be a litigating party before such bodies.

“The ruling party being a party to the various disputes which go before the Election Commission therefore it cannot dominate the selection of the Election Commission,” Bhushan argued.

Towards the end of the hearing, the Bench also discussed whether the challenge required reference to a Constitution Bench under Article 145(3) of the Constitution. The issue arose after the Attorney General argued that the petitions effectively sought a reconsideration of the Constitution Bench judgment in Anoop Baranwal.

Bhushan opposed any such reference and argued that every challenge to a statute involving constitutional interpretation could not automatically be sent to a larger bench.

“Every challenge to a law will have substantial questions about the interpretation of the Constitution. But if Article 145(3) is interpreted to mean that all such issues have to be sent to a Constitution Bench, it will make it unworkable,” he submitted.

Sankaranarayanan argued that the constitutional issues under Article 324 had already been settled by the Constitution Bench in Anoop Baranwal and that the present case only required the Court to examine whether the 2023 law was consistent with that judgment.

The Court, however, did not express any final view on the issue of reference during the hearing.

The matter will be heard further next week.

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