Do judges really select judges nowadays? Supreme Court asks Centre in ECI appointments case

Do judges really select judges in India today, the Supreme Court asked on Thursday as it deliberated over Union government's dominant role in appointment of the Chief Election Commissioner and other Election Commissioners in India.

A Bench of Justices Dipankar Datta and Satish Chandra Sharma was hearing petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

"As you said judges select judges, we wonder whether judges select judges nowadays," the Bench said.

The remark was made after Solicitor General Tushar Mehta submitted that executive and legislature were the only branches which are directly accountable to the people.

However, the Court referred to the criminal background of lawmakers and ministers across India.

"Dr. Ambedkar said democracy has failed in India one year prior to his death. There’s a video that’s available. Even when the Constitution was introduced in 1950, he said it’s biased…. Dr. Ambedkar passed away in 1955-56. He laments. He goes back on what he had said. What he had expected people to be. Just give us the figures in how many States there are ministers who have cases?"

Today, the Court also observed that two members on the panel selecting Election Commissioners are on the side of the government and only one member remains on the other side.

"What Dr. Ambedkar has said has been echoed by everyone else. We would trust the Prime Minister. But this has not happened over the years. I rest at that. Now it’s 2:1. Two on the side of the cabinet and one on the side of the opposition. Election commissioner is supposed to be an independent person. Should the committee not have any show of fairness? We are not saying fairness is not being achieved. But it has to be shown," the Bench said.

Since the government pressed for a reference of the matter to a larger bench under Article 145(3) in Constitution of India, the Court reserved its decision on the question before proceeding further on petitions challenging the 2023 law.

"Order on the question as to whether the writ petitions ought to be referred to a bench of five judges is reserved," the Court said.

Under the 2023 Act, the current panel to appoint the Chief Election Commissioner and other Election Commissioners comprises the Prime Minister, the Leader of Opposition and a Union Cabinet Minister.

The petitions challenging the law contend that it 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.

Arguments

Solicitor General Tushar Mehta said the Supreme Court in Anoop Baranwal had merely filled the legislative vacuum.

However, Mehta asked whether legislative wisdom should be bound by a temporary judicial verdict.

"Would Anoop Baranwal not amend the basic structure of the constitution if it is interpreted like this? Independence of judiciary, executive and legislature is part of the basic structure of the constitution. When it is left to the wisdom of a particular organ of the state. Supreme Court merely fills up the vacuum till legislative wisdom takes over. Anoop Baranwal has never been tested by any constitution bench," he said.

Mehta also asked whether appointments made by executive could be questioned merely because of absence of an outsider in the panel.

"When the executive wants to participate in the selection of another organ it becomes a question of independence of another organ. Can it be said to judiciary then that we will not trust your appointments because there is no outsider. This is not adversarial. I am just saying this as a student of law," he said.

Mehta questioned the doubts over Prime Minister's decisions under the law.

"If PM’s decision is to be seen as a bad faith exercise..the constitutional trust doctrine is developed by a five judge bench. The moment we say this composition doesn’t inspire confidence, the moment your lordships say this committee is not adequate, we are doubting the wisdom of the parliament."

The Court said it does not doubt the Prime Minister but it expects show of fairness in the process.

Continuing with his submissions, Mehta today also argued that the matter should be referred to a larger bench since it involves substantial question of law. However, the Court referred to the delays with which such references are decided.

"It took 8 years for Anoop Baranwal to be decided. We know what it is. There is a matter coming up from West Bengal. In 1997, Justice Sinha delivered the opinion. 28 years have passed. Reference has not been decided. Thousands of farmers are suffering."

The Court agreed that a substantial question of law was involved but asked the Solicitor General to answer whether a two-judge bench had no other option but to refer to a larger bench. It added that the SG should argue on merits and not expect a piecemeal judgment.

"Why don’t you argue on merits? We want to hear you. Don’t expect a piecemeal judgement that we’ll say whether reference is needed or not. We will first hear you on merits. Then if needed we will do it (refer)," the Bench said.

When Mehta said he did not have issue with the setting up of a constitution bench tomorrow, the Court said,

"You will not have any difficulty. But there is difficulty on the judicial side."

Earlier today, Attorney General R Venkataramani also argued that the matter required consideration by a larger bench.

Advocate Prashant Bhushan, appearing for the petitioners, opposed the government's demand for reference.

"This issue has already been decided in a large number of cases saying that if the issue is already decided by a constitution bench then it may not be referred. Whether a law provides that the people appointing the CEC will be dominated by a party who has to deal with issues decided by the CEC - this issue has also been decided," he said.

He also argued that the question was not whether CJI could have been replaced in the panel but whether the law to give the power to select the third member by the the prime minister is not against the principle of free and fair elections.

"The principle that if government dominates the selection of the election commissioner violates free and fair elections is a question that has already been decided by a constitution bench," he said.

Senior Advocate Vijay Hansaria said that the government had not raised the issue of reference initially.

"It was only on the 20th hearing that the question of reference arose. That means the Union itself was not sure whether there should be a reference. Even in their reply, this argument was not taken. Their preliminary submission should have been about this. But it was never said," he said.

Hansaria also contended that executive cannot have an exclusive say in the appointment of the Election Commissioners, adding that the new law had taken the system back to the situation prevailing before Anoop Baranwal judgement.

Senior Advocate Shadan Farasat said when the Prime Minister selects the members of the selection committee, it leads to executive dominance which is in the teeth of interpretation of Article 324 in Anoop Baranwal.

He said today there is constitutional mandate on the parliament to have a law which is non executive dominant.

"Your lordships in Baranwal have held that non executive dominance is a requirement of Article 324. It’s a ratio of Article 141 in Anoop Baranwal," he added.

Senior Advocate Gopal Sankaranarayanan also opposed the reference. However, the Court said it will reserve its decision on the government's demand.

"Please provide your written arguments," the Court told lawyers.

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