The Centre has justified the decision to remove the Chief Justice of India (CJI) from the selection panel for the Chief Election Commissioner (CEC) and Election Commissioners (ECs), telling the Supreme Court that the Constitution does not require judicial representation on the committee. The government argued that including a judiciary member is a legislative choice, not a constitutional necessity.
Background of the Case
In 2023, a five-judge Supreme Court bench had ruled that, as an interim measure, appointments to the Election Commission should be made by a panel comprising the Prime Minister, the CJI, and the Leader of the Opposition (LoP) until a law was enacted. Subsequently, Parliament passed the CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, which established a selection committee consisting of the PM, a Cabinet minister, and the LoP. The validity of this law is now being challenged in the Supreme Court.
Government's Affidavit
In its affidavit, the government countered the petitioners' argument that replacing the CJI with a Cabinet minister would compromise the EC's independence. It stated that there is no flaw in the law passed by Parliament and that free and fair elections have never been compromised even when appointments were made solely by the executive, as was the practice for over seven decades. The government noted that all previous CECs and ECs were appointed by the executive, calling the alleged link between exclusive executive authority and lack of institutional independence hypothetical.
Key Points from the Affidavit:
- Without a constitutional mandate for judicial representation, it is baseless to claim that the selection committee provided by Parliament would be biased.
- The question is not what procedure the court would endorse, but whether the court has the authority to examine the law at all.
- It is inappropriate and legally unsustainable to allege that independence of a constitutional authority can only be ensured through a specific selection panel formulation.
- Allegations of disingenuous motive or premeditation by the government are without basis, as a law made by a competent legislature cannot be challenged on grounds of ulterior motive.
Defense of the 2023 Law
The government described the 2023 law as a significant improvement over the earlier system, providing a more democratic, collaborative, and inclusive process for appointing election commissioners, in line with Article 324(2) of the Constitution. It emphasized that no allegations have ever been raised regarding the credentials or suitability of any election commissioner appointed so far. The government added that attempts to generate political controversy based on vague, unsupported, and speculative assertions about appointments are unfair and unsustainable.
