Why SC will review CEC selection rule before next appointment on February 18

In a move that underlines long-standing tensions between judicial oversight and legislative authority, the Supreme Court has agreed to hear a batch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Tenure) Act, 2023. .

The legislation, enacted in December 2023, has sparked intense debates over its implications for the independence of the Election Commission of India (ECI). Central to the controversy is the exclusion of the Chief Justice of India (CJI) from the selection panel to appoint the chief election commissioner (CEC) and election commissioners (EC).

Senior advocate Prashant Bhushan, representing election watchdog Association for Democratic Reforms (ADR), informed a bench of Justices Surya Kant, Dipankar Datta and Ujjal Bhuyan that incumbent CEC Rajiv Kumar was scheduled to retire on February 18 and that his successor would be appointed under the recently enacted law unless the court intervenes. Noting that the case raises a conflict between judicial opinion and legislative authority, the court declared: “We will hear it on February 4.”

This is not the first time the Supreme Court has addressed concerns about the ICE appointment process. In 2015, Anoop Baranwal filed a public interest litigation (PIL) seeking the establishment of an independent, college-style system for appointing the CEC and the EC. The petition argued that Article 324 of the Indian Constitution required Parliament to enact a law regulating these appointments. However, in the absence of such legislation, appointments were made by the President of India based on the recommendations of the Prime Minister. The petitioners argued that this process undermined the independence of the ICE and jeopardized the integrity of free and fair elections.

The Supreme Court observed that this legislative lacuna had persisted for 73 years since the adoption of the Constitution. He stressed that the independence of the ICE was essential to guarantee free and fair elections, the cornerstone of a vibrant democracy. The court noted that several institutions supporting constitutional democracy, such as the National and State Human Rights Commissions, the Central Bureau of Investigation (CBI), the Information Commission and the Local Commission, had independent mechanisms for appointing their members.

On March 2 last year, a five-judge constitutional bench, headed by Justice KM Joseph, delivered its verdict on the matter. The court ordered the formation of a committee, comprising the prime minister, the opposition leader and the CJI, to advise the president on appointments to the ICE. This provisional agreement would remain in force until Parliament passed a law addressing the issue. The court noted that a committee with diverse leadership was essential to safeguard the “fierce independence, neutrality and honesty” of ICE and eliminate the government’s “exclusive control” over appointments to this vital institution.

The ruling was widely praised as a step to ensure free and fair elections, but also prompted a swift response from the government. The enactment of the Chief Electoral Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Duration of Office) Act, 2023 replaced the selection mechanism proposed by the judiciary with a framework heavily influenced by the executive. As per the law, the CCA and other ECs will be appointed from among persons who hold or have held positions equivalent to the rank of Secretary to the Government of India.

A search committee, chaired by the Union Minister of Law and Justice, will prepare a panel of five candidates for consideration by the selection committee. The president will appoint the CEC and the EC based on the recommendations of this selection committee, which includes the prime minister, the leader of the opposition in Look Sabah and a Union cabinet minister appointed by the prime minister. While the law introduced a formalized process to identify candidates for these crucial roles, it removed the CJI from the selection process established in the Anoop Baranwal case.

Responding to a plea challenging the law and seeking its suspension, a division bench of Justices Sanjiv Khanna and Dipankar Datta on January 12, 2024 refused to stay the legislation.

Adding to the controversy, the law faced immediate implementation challenges. In March 2024, the government appointed two new ECs (Gyanesh Kumar and Sukhbir Singh Sandhu) under the provisions of the new law. The appointments sparked criticism, with petitioners alleging procedural irregularities.

Adhir Ranjan Chowdhury, then opposition leader and member of the selection panel, claimed he had not been given enough time to evaluate the shortlisted candidates. Despite these accusations, the Supreme Court refused to intervene, stating that laws were not “normally” suspended. This decision allowed the appointments to go ahead even though it left concerns about transparency and executive dominance unresolved.

The Supreme Court refused to stop the appointments of CEs Sukhbir Singh Sandhu and Gyanesh Kumar even though the petitioners contended that the government’s haste and lack of transparency conveyed a disturbing impression that the two retired IAS officers were “ aligned” with the government.

The Chief Election Commissioner Act has been challenged on multiple grounds. The petitioners, including Congress leader Jaya Thakur and ADR, argue that the law undermines the Supreme Court’s earlier judgment. Critics argue that the removal of the CJI from the selection panel tilts the balance of power in favor of the executive, potentially compromising the neutrality of the ICE.

Bhushan, representing ADR, has pointed out that the law gives the government a dominant role in the appointment process, violating constitutional principles. Others, such as prominent advocate Gopal Sankaranarayanan, have argued that such a fundamental change in the selection mechanism could only be achieved through a constitutional amendment, not through ordinary legislation.

Historically, the CEC and EC have been appointed by the president based on the prime minister’s recommendations, a process often criticized for lacking safeguards against political interference. Article 324 of the Constitution describes the composition of the ICE, made up of the CCA and two ECs. While the Constitution requires their appointments to be made by the president, subject to any parliamentary law, existing legislation only addresses their conditions of service and is silent on the appointment process. Consequently, appointments have been made solely by the central government, without provisions guaranteeing independence in the selection process.

Both the Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission in its 255th report (2015) recommended that the CEC and the EC be appointed by a collegium comprising the prime minister, the CJI and the leader of the opposition or the largest opposition party in the Lok Sabha. Acting on these recommendations, the Supreme Court, invoking its powers under Article 142 to deliver “complete justice”, ordered that a similar committee would supervise the appointments until Parliament enacted appropriate legislation.

The ICE is responsible for supervising, directing and controlling elections to Parliament, state legislatures and the offices of the president and vice president. It operates with three members: the CEC and two ECs.

The government has defended the law as a necessary step to formalize the appointment process. He argues that the inclusion of the opposition leader ensures political balance, while the presence of the cabinet minister reflects executive responsibility. Furthermore, the government maintains that the legislative authority of Parliament must be respected and emphasizes that the law complies with constitutional provisions.

Legal experts and civil society organizations have expressed concern about the implications of the new law. Critics argue that replacing the CJI with a cabinet minister undermines the principle of institutional independence.

Now, as the Supreme Court prepares to hear arguments on February 4, the case raises fundamental questions about the balance of power in India’s democracy. The outcome will not only determine the constitutionality of the Chief Electoral Commissioner Act but will also set a precedent on how far legislative action can go to redefine constitutional principles.

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