ECI Appointments | Day 2: Petitioners challenge executive dominance
Challenges to the Appointment of Election Commissioners Act, 2023Judges: Dipankar Datta J, S.C. Sharma J
Today, a Bench of Justices Dipankar Datta and S.C. Sharma took up petitions questioning the constitutionality of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Office and Terms of Office) Act, 2023.
Substantial arguments were made by Senior Advocate Vijay Hansaria who appeared for the petitioners with Senior Advocates Gopal Sankaranarayanan and Shadan Farasat. Advocate Prashant Bhushan appeared for the Association for Democratic Reforms, the lead petitioner in Anoop Baranwal v Union of India (2023).
Anoop Baranwal established a committee to advise the President on the appointment of the Chief Election Commissioners (CEC) and other members of the Election Commission, pending enactment of a law by Parliament. This committee comprised the Prime Minister, the Leader of Opposition and the Chief Justice of India. When the law materialised as the challenged Act, it replaced the CJI with a Union Cabinet Minister nominated by the Prime Minister. Petitioners argued that the Act violated Anoop Baranwal as it skewed the ratio of representation.
Solicitor General Tushar Mehta appeared for the Union government and requested an adjournment which was denied by the Bench.
Hansaria: No guidelines for appointment of search committee
Referring to provisions under challenge, Hansaria began with Section 6 of the Act which provides for a “Search Committee” that prepares a panel of five persons for the “Selection Committee” to consider. The Selection Committee, provided under Section 7, consists of the Prime Minister, Leader of Opposition and the Union Cabinet Minister. Hansaria pointed out that Section 8 grants wide powers to the Selection Committee to regulate its own procedure and select a member other than these five.
Justice Datta enquired about the process of selection for the Search Committee, which includes the Minister of Law and Justice and two other members below the rank of Secretary. Hansaria responded that there were no guidelines. He argued that both Section 7 and 8 should be struck down as they could result in appointments biased in favour of the executive.
Hansaria: Independence of the Election Commission of India (ECI)
Hansaria then referred to various Constituent Assembly Debates and Committee Reports which urged for independence of the ECI. He argued that the current composition places this independence at risk by giving the executive the final say in appointments. Drawing parallels with the Collegium system, Hansaria contended that the Court, through a series of decisions, ensured that judicial appointments to the higher judiciary are free from executive interference. Similarly, the ECI should also have an independent mechanism for appointments as any ruling party would have an inherent interest in the conduct of an election.
Justice Datta pointed out that Anoop Baranwal was only to fill a temporary vacuum until Parliament made a law. He asked if Parliament loses its discretion considering the judgement was applicable only made for a specific period. Hansaria responded that the ratio of Anoop Baranwal extended beyond the Committee to build a basis for independence of the ECI. He pointed out that ECI wields substantial power over conduct of elections under Article 324 and submitted that the Act could be tested on the basis of Article 14 as well. Thus, Parliament is still bound by Anoop Baranwal to ensure that the independence of ECI is maintained.
Moving to the National Judicial Appointment Commission (NJAC), Hansaria pointed out that it was struck down by the Supreme Court for undermining judicial independence. Drawing an analogy, he reiterated that the Executive, similarly, cannot have a dominant role in ECI appointments.
Sankaranarayanan: Law should be consistent with the judgement
Sankaranarayanan argued that the composition need not consist of the CJI at all. It should, however, have a mechanism to prevent executive dominance over appointments. He contended that prior to Anoop Baranwal the Court had stepped in on occasions to fill a vacuum, provided that Parliamentary law is consistent with the judgement.
Sankaranarayanan submitted that the law should have been made through a constitutional amendment. He argued that the NJAC was also brought in through constitutional amendments after the Court established the Collegium system through the constitutional provisions. The Anoop Baranwal judgement too had interpreted the constitutional text to hold that executive interference cannot be there in ECI appointments.
Moreover, he contended that a law for ECI appointments should have been made in 1950, as the framers intended the mode of appointments to be independent. However, it took seven decades to enact a law. Moreover, no political party wanted to disturb the manner in which appointments were made, as any ruling party could have the reins and control the ECI when they came into power. This reflects the need to keep the appointment process independent. He argued that Section 7 has no basis to remove the stop gap arrangement that the Court found in Anoop Baranwal.
Arguments will continue tomorrow.