ECI Appointments Act, 2023 | Day 3: Petitioners argue that law undermines guarantee of free and fair elections

ECI should be an independent body

Hansaria, appearing for Jaya Thakur, argued that the challenged law is “worse than before” because it institutionalises an executive majority in the selection process of the members of the Election Commission of India (ECI). Referring to Section 7 of the Act, Hansaria noted that the “Selection Committee”—comprising the Prime Minister (PM), a Union Cabinet Minister nominated by the PM, and the Leader of Opposition (LoP)—relegates the LoP to a minority. According to Hansaria, this composition violates the requirement of a “truly independent” Election Commission laid down in Anoop Baranwal.

Appearing for the Association for Democratic Reforms, Bhushan argued that Anoop Baranwal left no room for executive discretion or dominant control over appointments to the ECI. He warned that allowing the executive branch to hold the reins of appointment creates an inherent institutional bias, imperiling “free and fair elections”, a part of the Basic Structure of the Constitution. Raj supported this, adding that Anoop Baranwal did not create new law but merely reiterated foundational constitutional principles that the current statute seeks to dismantle. Bhushan suggested that even without Anoop Baranwal, the law should be set aside for violating these foundational principles. He urged the Court to define what the Selection Committee “cannot have,” specifically that the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha i.e. the Vice President of India must be excluded to preserve the committee’s independence from the executive.

Farasat argued that while executive presence is permissible, executive dominance is not. He submitted that the ECI has wide powers such as allocating symbols, suggesting disqualifications and “literally run the government” after announcing elections. He warned that the “entire democratic republic” would be jeopardised if the ECI went “haywire”. He suggested that the Court strike down the Act and reinstate Anoop Baranwal for the interim period, which prescribes the PM, the LoP and the Chief Justice of India (CJI).He suggested the CJI can act as the consensus builder and any member appointed to the ECI should be through a unanimous arrangement instead of a majority one. Alternatively, it can only be the PM and the LoP who make a unanimous call. Moreover, the third member could also be decided based on a 2/3rd majority of Parliament as it requires both the ruling party and the opposition to reach a consensus on names. 

Parliament nullified precedents 

Bhushan flagged the growing trend of Parliament nullifying judgements. Bhushan referred to Madras Bar-I, Madras Bar-II, Madras Bar-III, Madras Bar-IV and Rojer Mathews where the Court had to “time and again” strike down laws made by Parliament that dealt with appointments to tribunals after each judgement. Similar to tribunals, Bhushan argued, ECI are quasi-judicial bodies too. “Even if you strike it down, they will bring it back in another avatar,” he stated.

Parikh referred to the Vishaka Guidelines which led to the legislation penalising sexual harassment in the workplace, and the DK Basu guidelines on arrest that resulted in amendments to criminal law. He explained that these legislations were not struck down because they remained faithful to the Court’s guidelines. In contrast, he referred toVineet Narain v Union of India (1997), where the Court struck down a law mandating prior sanction from the Union government for investigating senior officers of the government. A legislation attempting to nullify the judgement was again struck down in Subramanian Swamy v Union of India (2014). 

No opposition in Parliament to challenge law 

The petitioners questioned the circumstances surrounding the Act’s passage. They pointed out that the legislation was enacted when a significant section of the Opposition stood suspended. Farasat noted that 95 Lok Sabha members had been suspended when the Bill was discussed. 

Bhushan noted that MP Asaduddin Owaisi was among the few members who challenged the Bill’s validity on the floor. The majority dismissed these concerns by arguing that the Anoop Baranwal committee was merely an interim arrangement until Parliament made a law. 

Arguments will continue next Thursday, with petitioner in person S.N. Shukla appearing for Lok Prahari.