The Supreme Court today commenced hearing petitions challenging the constitutional validity of Section 7 of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which excluded the Chief Justice of India from the selection committee for appointing Election Commissioners. Section 7 of the Act states:
- (1) The Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of—
(a) the Prime Minister—Chairperson;
(b) the Leader of Opposition in the House of the People—Member;
(c) a Union Cabinet Minister to be nominated by the Prime Minister—Member.
The petitions, filed by Jaya Thakur, Association for Democratic Reforms and Lok Prahari, contend that the law restores executive dominance in appointments contrary to the Constitution Bench ruling in Anoop Baranwal v. Union of India, 2023 (6) SCC 1, which had directed that Election Commissioners be appointed by a panel comprising the Prime Minister, Leader of Opposition and the Chief Justice of India until Parliament enacted a law ensuring an independent appointment mechanism.
This matter is more important than any other matter: Justice Dipankar Dutta
The Supreme Court refused to adjourn the hearing on petitions challenging the law governing the appointment of the Chief Election Commissioner and Election Commissioners, despite repeated requests by Solicitor General Tushar Mehta citing his engagement before a nine-judge Constitution Bench.
A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma expressed unwillingness to defer the matter, noting that the hearing had been fixed a month in advance. Justice Datta remarked: “This matter is more important than any other matter.”
अंधा बांटे रेवड़ी फिर-फिर अपनों को दे
Senior Advocate Vijay Hansaria, appearing for the petitioners, argued that Section 7 of The Chief Election Commissioner and Other Election Commissioners Act, 2023 grants primacy to the executive in appointments to the Election Commission, contrary to the Constitution Bench ruling in Anoop Baranwal v. Union of India, 2023 (6) SCC 1.
Senior Advocate Vijay Hansaria argued that the Constitution Bench in Anoop Baranwal had clearly held that appointments to the Election Commission cannot remain “exclusively in the hands of the executive.” Referring extensively to the judgment, Hansaria submitted that Parliament may enact a law, but such a law cannot simply perpetuate the same executive-controlled mechanism that existed earlier. He argued that vesting the final say in the executive undermines the independence of the Election Commission, especially since the ruling party has a “direct interest” in election outcomes conducted by the poll body.
Hansaria argued that under the present law, the Prime Minister and a Union Minister nominated by him effectively dominate the selection committee, reducing the process to an “empty formality.” He contended that the constitutional concern identified in Anoop Baranwal that a “pliable Election Commission” could aid consolidation and retention of political power remained unaddressed.
During the hearing, the Bench questioned whether the directions issued in Anoop Baranwal were merely interim norms operating till Parliament enacted a law, or whether the judgment also laid down broader constitutional principles limiting executive control. Senior Advocate Vijay Hansaria replied that while the directions in Anoop Baranwal operated till Parliament enacted a law, the constitutional principles underlying the judgment continued to bind Parliament. He argued that the Constitution Bench had derived those norms from Article 324 and the need for an independent Election Commission, specifically holding that appointments “cannot be left to the executive alone.” He submitted that the 2023 law fails this constitutional test because, in substance, it leaves the appointment process under executive control through the Prime Minister and a minister nominated by him.
Mr Hansaria further relied on parliamentary debates surrounding the legislation, including speeches by opposition leaders, to argue that the enactment was criticised even within Parliament as concentrating “total executive control” over the Election Commission.
Senior Advocate Vijay Hansaria referred to the Hindi phrase “अंधा बांटे रेवड़ी फिर-फिर अपनों को दे” used by the opposition to contend that the present selection mechanism effectively allows the executive to appoint Election Commissioners of its own choice. The phrase was invoked in the context of parliamentary criticism of the law.
Without Constitutional Amendment, This Law Cannot Stand
Senior Advocate Gopal Sankaranarayanan told the Supreme Court that the 2023 law governing appointments to the Election Commission cannot survive constitutional scrutiny because it fails to remove the “exclusive power of the executive” identified in the Anoop Baranwal case.
Appearing for one of the petitioners, Mr Sankaranarayanan argued that the Constitution Bench judgment in Anoop Baranwal was not merely a stop-gap arrangement but laid down binding constitutional principles flowing from Article 324 and the rule of law. He contended that once the Court interpreted the Constitution to require an independent appointment mechanism insulated from executive control, Parliament could not undo that position through an ordinary statute without amending the Constitution itself.
Drawing a comparison with the National Judicial Appointments Commission (NJAC), he submitted that Parliament itself understood that altering judicial appointment mechanisms required a constitutional amendment. “Without a constitutional amendment, this law cannot stand,” he argued.
Mr Sankaranarayanan further submitted that the Constitution Bench had expressly held that the appointment process for Election Commissioners was always intended to be taken out of the “exclusive power of the executive,” and the 2023 law merely perpetuates the earlier arrangement under which appointments were effectively controlled by the government of the day.
During arguments, he also relied on precedents such as Vishaka v. State of Rajasthan, AIR 1997 SC 3011 and Vineet Narain v. Union of India, (1998) 1 SCC 226 to argue that when the Supreme Court frames constitutional guidelines to fill a vacuum, any subsequent legislation must remain consistent with the principles underlying those directions.