‘Why should a minister choose CEC?’: SC questions Centre on poll panel law

The Supreme Court of India on Thursday questioned the inclusion of a Union Cabinet minister in the three-member panel responsible for selecting the Chief Election Commissioner (CEC), observing that the process must inspire public confidence in the independence of the Election Commission.

A bench comprising Justice Dipankar Datta and Justice S. C. Sharma was hearing a batch of petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The court made the observations while Attorney General R. Venkataramani argued that the independence of the Chief Election Commissioner should be judged by the functioning of the office-holder after appointment.

“It is not sufficient to be independent, but it has to appear to be independent,” the bench observed during the hearing.

Justice Datta further remarked that the level of public confidence in the appointment process should be such “as if there had been a third neutral person in the selection committee”.

“Somebody who is a neutral person, he should select. Why should it be a minister from the Cabinet?” the judge asked.

Centre seeks larger bench hearing

The Centre urged the court to refer the matter to a five-judge Constitution bench, arguing that the petitions effectively sought judicial examination of policy choices made by Parliament.

The Attorney General contended that the Supreme Court’s 2023 judgment in the Anoop Baranwal vs Union of India case had lost relevance after Parliament enacted a law governing appointments.

In the Anoop Baranwal ruling, a Constitution bench had directed that appointments to the Election Commission be made by a panel comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India until Parliament framed a law on the issue.

The 2023 legislation subsequently replaced the Chief Justice of India in the panel with a Union Cabinet minister.

Petitioners, including Association for Democratic Reforms, have argued that the law compromises the independence of the Election Commission by giving the executive a dominant role in appointments.

Court says focus is constitutionality of law

The bench, however, indicated that its examination would focus on the constitutional validity of the legislation rather than revisiting the earlier judgment itself.

The judges pointed out that the petitioners had challenged the law on grounds that it violated Article 14 of the Constitution relating to equality before law.

“If we are with them, we will say that for xyz reasons we feel that Article 14 is violated,” the bench told the Attorney General.

Senior advocate Gopal Sankaranarayanan, appearing for one of the petitioners, argued that the matter concerned alleged constitutional violations and did not necessarily require reference to a larger bench.

The hearing remained inconclusive and is expected to continue next week.