Supreme Court questions delay in CEC appointment law, calls it ‘tyranny of the elected’

The law states that the CEC and ECs will be appointed by a selection panel comprising the Prime Minister, Leader of Opposition, and a Union Cabinet Minister.

Selection committee and meetings

Justice Datta’s remark came as Senior Advocate Vijay Hansaria, appearing for Congress party leader Jaya Thakur, contended that there was no effective consultation by the panel in 2024 before the selection committee recommended the names of Gyanesh Kumar and Sukhbir Sandhu for appointment as CEC and EC, respectively.

Hansaria also suggested that the meeting of the selection committee was advanced from March 15 to March 14 to pre-empt an application filed in the SC seeking stay of selection and appointment of EC’s and, which was scheduled for hearing on March 15, but the court refused to accept this as the counsel said he did not have any material to establish this.

Referring to the timeline of events, Hansaria said, “On March 9, 2024, notice was issued for a meeting on March 15 to fill one vacancy of the EC. On March 9, EC Arun Goel tendered his resignation, which was accepted the same day, resulting in the second vacancy. So, on March 9 again, a notice was issued for the selection committee meeting to select 2 ECs, which was preponed to March 14. Also on March 12, an application was filed for a stay of the selection and appointment of the ECs.”

Hansaria added that on March 13, the legislative secretary sent a list of 200 names under consideration by the search committee to Adhir Ranjan Chowdhury, the de facto leader of the Opposition, as the search committee could not shortlist them.

“On March 14, the search committee recommended a panel of 6…for consideration of the selection committee and circulated it to the selection committee. On March 14, the selection committee met and recommended the names of Gyanesh Kumar and Sukhbir Sandhu to the President for appointment. They were appointed on March 14 itself.”

He pointed out that on March 15, the court said that the stay applications would be taken up on March 21, and on March 22, it dismissed the application.

“This is what happens when you give absolute power to one individual,” he said, adding how can there be effective and meaningful consultation when 200 names are shared just one day before the selections are made.

‘Unfortunate for our country’

The court asked Advocate Prashant Bhushan, who was representing the petitioner Association for Democratic Rights (ADR), “What happened before Baranwal? Why did Parliament not make a law?”

Bhushan said, “Every time that a government came to power, they felt that now they can misuse this power of appointment. And that is noted in this judgement in Baranwal also, that while in opposition, people were clamouring that there should be an independent body, (but) as soon as they came to power, they stopped bothering about that. This is what was happening. And that is why the court had to step in.”

Justice Datta said he is “reminded of a parliamentarian saying tyranny of the unelected” and added, “This should be equated with tyranny of the elected.”

“Tyranny of the majority. That is why there are fundamental rights, that is why we have a constitution. That is why we have a republic, so that it cannot be the tyranny of the majority also,” Bhushan said.

Justice Datta said, “Whoever comes in power is….” Before the judge completed, Bhushan added, “doing the same thing. This is unfortunate”.

“Unfortunate for our country,” remarked Justice Datta.

Justice Datta said, “Two days ago, I had the chance to view a video prepared by the BBC. Need to hear what Ambedkar said. He was a dejected man in 1953. Within three years of the Constitution, he felt that democracy was not working in this country.”

Anoop Baranwal judgment

In the Anoop Baranwal judgment, while referring to Article 324(2), the SC directed that till such time the law is made, they shall be appointed on the advice of a committee consisting the Prime Minister, the leader of the Opposition in Lok Sabha, and in case there is no such leader, the leader of the largest party in the Opposition in the Lower House having the largest numerical strength and the Chief Justice of India.

Article 324(2) called for a law to be made by Parliament “fixing the criteria for selection, conditions of service and tenure” of CEC and ECs.

Subsequently, Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.