In an important development, the Centre has justified the government’s decision to drop the Chief Justice of India (CJI) from the panel to appoint the Chief Election Commissioner and Election Commissioners (ECs) in its affidavit filed to the Supreme Court.
The Centre has told the top court that the Constitution does not mandate judicial representation on the Appointment Committee of the Election Commission. It further clarified that inclusion of a member representing the judiciary is a legislative choice, not a constitutional imperative.
It needs to be mentioned here that a five-judge SC bench had provided for a stopgap measure in 2023 by ruling that appointments to the ECI should be made by a panel comprising the PM, the CJI and the Leader of Opposition (LoP) until a law was framed. After this ruling the Parliament enacted the CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, under which the appointment committee comprises the PM, a cabinet minister and the LoP.
Now, the validity of this law has been challenged in the SC in which the petitioner’s argument that the EC’s independence would be compromised by replacing the CJI with a cabinet minister.
The govt has countered this contention in its affidavit, saying there was no flaw in the law passed by Parliament and that “free and fair elections had never been casualties” even when appointments were made solely by the executive, as had been the practice for over seven decades.
The govt cited the fact that all previous CECs and ECs had been appointed by the executive suggesting that the nexus between exclusive executive authority in appointments and lack of institutional independence was hypothetical.
The govt further said it would be “inappropriate, legally unsustainable and premised on a fundamental fallacy” to allege, without basis, that independence of a constitutional authority can be ensured only when the selection panel follows a particular formulation.
The govt’s contention is clear: “It is well settled that no law duly made by the competent legislature can be challenged on the ground that it was made with an ulterior motive.”.
The affidavit also said the presence of senior govt functionaries in the selection committee, along with the LoP, cannot by itself be grounds to presume bias, as constitutional functionaries must be presumed to act fairly and in good faith in public interest.
Referring to the 2023 law, the govt said it provides a “more democratic, collaborative and inclusive” process for appointing election commissioners, in line with the spirit of Article 324(2) of the Constitution.
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