Centre defends dropping CJI from selection panel, says EC’s independence doesn’t stem from judicial member’s presence

PTI, Mar 20, 2024, 5:46 PM IST

Representative image (source: PTI)

New Delhi: The Centre on Wednesday defended in the Supreme Court the appointment of two new election commissioners (ECs) under a 2023 law that excludes the Chief Justice of India from the selection committee, saying the independence of the Election Commission does not arise from the presence of a judicial member on the committee.

In an affidavit filed in the apex court, the Union Law Ministry rejected the petitioner’s claim that the two election commissioners were hastily appointed on March 14 to “pre-empt” the orders of the top court the next day, when the matters challenging the 2023 law were listed for hearing on interim relief.

The affidavit has been filed in response to a batch of pleas, including those by Congress leader Jaya Thakur and the Association for Democratic Reforms, challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023.

“It is submitted that the case of the petitioners is premised on one fundamental fallacy that the independence can only be maintained in any authority when the selection committee is of a particular formulation. It must be noted that the independence of the Election commission, or any other organisation or authority, does not arise from and is not attributable to the presence of a judicial member in the selection committee,” the affidavit said.

Refuting the petitioners’ claim that no list of probable appointees was shared with the opposition, the Centre submitted that the names of short-listed persons were made available to Leader of the Opposition in the Lok Sabha Adhir Ranjan Chowdhury on March 13, 2024, after the Search Committee had finalised six names for recommendation.

“It is, therefore, wholly wrong, misleading and malicious to suggest that the third member of the Selection Committee was given the shortlisted names as an act of premeditation on the mind of the two members of the Executive as all the members received the list simultaneously. Furthermore, the list of dates clearly brings out the fact that profiles of all eligible persons were shared with the leader of the single largest opposition party in the Lok Saba on March 13, 2024.

“It may be noted that the persons finally appointed were from the list so shared. This belies the claim of the petitioners that no list was shared in advance of the meeting,” the affidavit said.

The Centre contended that a political controversy has been sought to be created only on the basis of “bare, unsupported and pernicious” statements about certain vague and unspecified motives behind the appointment.

It said the credentials of those finally appointed as election commissioners have at no point been called into question and no objection whatsoever has been raised about the fitness, eligibility or competence of any of the persons named in the list to serve as election commissioner.

“Where no question has been raised about the qualifications of candidates to hold a constitutional post nor has any material been brought on record to show that the candidates are unfit for office, no prima facie case can be said to have been made out. On that ground alone, the application for stay ought to be dismissed,” the affidavit said.

Arguing that the the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023 is a significant improvement in the appointment process of election commissioners, the Centre said it provides for a more democratic, collaborative, and inclusive exercise.

The affidavit refuted the petitioners’ claims of executive overreach and encroachment on the Election Commission’s autonomy.

“To indicate, as the petitioners suggest, that selection committees without judicial members, would invariably be biased is wholly incorrect. It is submitted that such an argument would read an implied limitation into the otherwise plenary power of Article 324(2), which is impermissible.

“The election commissioners have been able to function neutrally and effectively even during the era of full executive discretion in appointment. As a high constitutional office, the chief election commissioner enjoys protection that are in-built into the Constitution, and which enable them to act impartially,” it said, adding that the allegations of disingenuous motive and premeditation on the part of the government are wholly without basis.

The apex court had on Friday refused to stay the appointment of new election commissioners (ECs) under the 2023 law.

The two vacancies had arisen after the retirement of Anup Chandra Pandey on February 14 and sudden resignation of Arun Goel. Retired IAS officers Gyanesh Kumar and Sukhbir Singh Sandhu were appointed in their place.

Under the new law, the selection panel has the prime minister as the chairperson, and the leader of opposition and a Union minister nominated by the prime minister are the two other members.

A five-judge constitution bench had in March 2023 ruled that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) shall be appointed on the advice of a committee comprising the prime minister, the leader of the opposition in the Lok Sabha and the Chief Justice of India.