Wasn’t judgment on appointing CEC/ECs meant for short period until a law was in place, asks Supreme Court

The bench, also comprising Justice S C Sharma, asked whether the earlier observations in the 2023 ruling only justified the temporary appointment framework, or whether the new law can be challenged for not following them.

In March 2023, a five-judge constitution bench in ‘Anoop Baranwal v Union of India’ had interpreted Article 324(2) of the Constitution, which requires a law to be made by the Parliament “fixing the criteria for selection, conditions of service and tenure” of CEC and ECs. The court had said that until such a law is made, they shall be appointed on the advice of a Committee consisting of the Prime Minister, the leader of the Opposition in the Lok Sabha, and, in case there is no such leader, the leader of the largest party in the opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India.

Subsequently, Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, according to which the Selection Committee would comprise the Prime Minister, a Union Cabinet Minister and the Leader of Opposition in Lok Sabha. Petitions were filed before the SC challenging this on the ground that the exclusion of the CJI would affect the neutrality of the appointments.

The 2023 SC ruling examined debates of the Constituent Assembly to ascertain what the founding members of the Constitution envisaged the process to be, and also looked at similar provisions in the Constitution. The SC held that the Constitution mandated a law by Parliament and did not intend the executive to exclusively call the shots on appointments to the Election Commission.

Senior Advocate Vijay Hansaria, who appeared for Congress leader Jaya Thakur, who is one of the petitioners, submitted that there is no change in how the appointments are made before and after the 2023 SC ruling and that the appointment is still in the hands of the executive.

“What is the difference now? Even now it has to be appointed by the President on the aid and advice of the Prime Minister and a Minister chosen by the Prime Minister. There is no change in the position on the ground…,” he said. Hansaria argued that the appointments were earlier done under the Rules of Business of the House, which are now replaced by a law.

Responding to Hansaria’s submissions that various committees and even the Law Commission had said that appointments to EC cannot be solely be left to the executive, Justice Datta asked whether a 2002 report submitted by a committee headed by former CJI M N Venkatachaliah had suggested inclusion of the CJI in the panel.

“No,” the senior counsel said, adding that the idea, however, was that the PM should not have complete control.

Justice Datta also asked if the CJI was not recommended to be included because “there may be some inconvenience, some problem?.”

“No. The CJI is part of the selection committee for the CBI Director also. There is no question of inconvenience,” Hansaria said.

Senior Advocate Gopal Sankaranarayanan, who also argued against the 2023 law, said the only way Parliament could have undone the SC ruling was by amending the Constitution.

“Anoop Baranwal laid down the norms till a law is made. The idea was that the law made would be consistent with the judgment,” he argued.