Stating that the Election Commission of India must not only be independent but also appear to be so, the Supreme Court Thursday wondered why there can’t be an “independent member” in the three-member panel that picks the Election Commissioners (ECs) when even the committee for selecting the CBI Director has the Chief Justice of India in it.
The bench of Justices Dipankar Datta and S C Mishra asked the Centre why put up a show of independence in the matter of selection of ECs by the committee, comprising the Prime Minister, the Leader of Opposition and a Cabinet Minister, when the decision is by a 2:1 majority and the Cabinet minister is a PM pick.
“I was just wondering. For a CBI Director, the CJI is there – for maintenance of law and order or you can stretch it to rule of law also. But not for maintaining democracy? Not for ensuring a pure election? We don’t say that the CJI should be there. Why shouldn’t there be an independent member?” Justice Datta said.
“Let us be very clear. Today, the Prime Minister ticks one. The Leader of Opposition ticks another one. There is disagreement between the two. The third member will go towards the LoP?” he asked Attorney General R Venkataramani.
“May not. I don’t need to second guess that,” Venkataramani said.
“So it’s the executive that’s controlling everything,” Justice Datta said.
The bench was hearing petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which laid down that the CEC and ECs will be selected by a panel comprising the PM, LoP and a Union Cabinet Minister,
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Justice Datta made these remarks when Venkatarmani defended the law which was brought following the 2023 judgement in the Anoop Baranwal case. In that ruling, the Supreme Court, while referring to Article 324 (2) which called for a law to be made by Parliament “fixing the criteria for selection, conditions of service and tenure” of the CEC and ECs, had directed that until such time the law is made, they shall be appointed on the advice of a committee comprising the Prime Minister, 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 Lok Sabha, and the Chief Justice of India.
The Parliament then brought in the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which, however, left out the CJI.
Pointing out that the Baranwal judgement spoke of the independence of the poll body, Justice Datta said, “On the perception of the quality as to who the Chief Election Commissioner is, it is not sufficient that the Commission is independent. It must appear to be independent also.”
He turned to the AG, “If you accept this proposition, how do you secure independence?”
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Agreeing with the need to ensure independence of the poll body, Venkataramani said, “It (independence) will be demonstrated in everything it does.”
Justice Datta asked if that would start with the appointment.
The AG said, “After appointment. Appointment is not a matter which tests the qualities of the person… He (EC candidate) cannot certify himself.”
Justice Datta said, “One must have the same confidence in the body when the third member is a neutral person. The level of confidence must be to the degree that if there is a third person, absolutely neutral, the Election Commissioner, who is now being appointed, must be selected by a body of at least one absolutely neutral person.”
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“We don’t proceed further to say the PM cannot appoint. But it should be by a neutral person. He should select. Why should it be a minister from the Cabinet? Let us assume the ruling party has 300 MPs. Three hundred can’t become ministers. The discretion lies with the PM, he will select 25 of his best. Now you again micromanage it again and bring 1 from the 25. Why?”
As the AG tried to explain, Justice Datta said, “Why do you then include the Leader of the Opposition? He is ornamental. It will always be 2:1. Then why do you put this show of independence in the body? A member of the Cabinet will go against the PM?”
“May not,” Venkataramani said.
