The Supreme Court on Thursday questioned the appointment process for the Chief Election Commissioner (CEC) and Election Commissioners (ECs), where a panel comprising the Prime Minister, a Cabinet minister, and the Leader of the Opposition (LoP) selects the candidate. The court observed that the present system allows the government to appoint a person of its choice, as two out of three members would favor it, and asked why there is this "show-off about independence" in the appointment process.
Court Suggests Independent Member Instead of Minister
Referring to its earlier direction that the panel should comprise the Prime Minister, Chief Justice of India (CJI), and LoP, a bench of Justices Dipankar Gupta and Satish Chandra Sharma said that it was not necessary for the CJI to participate, but some independent person must be part of the panel. Otherwise, the presence of the LoP would become merely ornamental. The bench noted that when a CBI director is appointed by an independent panel of PM, CJI, and LoP, the same practice should apply to the CEC/ECs, which is more important as the institution upholds democracy and ensures free and fair elections.
Attorney General's Submission Rejected
Attorney General K. Venkataramani submitted that the neutrality and independence of CEC/ECs arise from their functioning after appointment. However, the bench disagreed, stating that independence begins with the appointment process itself. The court emphasized that the poll panel should not only act neutrally but also appear neutral. "Why should a minister from the Cabinet be part of it? Let us assume the ruling party has 300 MPs. The PM picks 25 of his best. Now you again micromanage it and bring one from the 25. Why? Why do you then include the leader of the opposition? He is ornamental. A minister will never go against the PM. It will always be decided by 2:1. Why this show-off of independence in the body?" the bench observed.
Validity of New Law Under Scrutiny
The court is examining the validity of the CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, which was enacted after the apex court had ordered appointments by a panel of PM, CJI, and LoP to infuse independence. A bunch of petitions, including one by Congress functionary Jaya Thakur from Madhya Pradesh, alleged that the new law undoes the Supreme Court's order and paves the way for the government to appoint its "yes men" to the crucial post.
Appointment of Gyanesh Kumar Under Scanner
As deliberations leading to the search, selection, and appointment of Gyanesh Kumar (now CEC) and S.S. Sandhu as election commissioners in 2024 came under scrutiny, with the petitioner alleging it was done in a tearing hurry in a day just before the apex court's crucial hearing, the bench asked the Centre to bring original records. Kumar was appointed election commissioner on March 15, 2024, after his superannuation on January 31.
The court further pointed out that the executive government is in a controlling position in deciding appointments to the poll panel. It noted that the CJI is part of the panel for appointing the CBI director, which maintains law and order and upholds the rule of law. The court said that compared to the CBI, the role of the EC is more crucial as it maintains democracy. "We don't say CJI should be there. But why shouldn't there be an independent member? Why should it be from the ministry? Let us be very clear. Today the Prime Minister picks one name. And LoP picks another. There is disagreement. Then the third member will go towards whom?" the bench said.
Attorney General's Defense
Contending that the court should resist entering the legislative arena while deciding the validity of the law, the AG said there had never been any allegation of CEC/ECs being compromised or hand-in-glove with the government. He stated that the country never witnessed a devastating or sad experience where an election commissioner failed to advance the rule of law, and there was no reason to doubt the present system.
