“It is not sufficient that the Commission is independent. It must appear to be independent also,” the Bench said.
Image: IANS
The Supreme Court on Thursday questioned the Central government over what it described as a “show of independence” in the process of appointing the Chief Election Commissioner and Election Commissioners, observing that the presence of a Cabinet Minister alongside the Prime Minister rendered the role of the Leader of Opposition in the three-member selection panel merely ornamental.
Observing that the Chief Justice of India is part of the panel for the selection of the CBI Director, and questioning why there was no independent member in the selection process for the CEC and the ECs, a Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma said that the independence of the Election Commission was not only about its actual functioning, but also about public perception.
Advertisement
“It is not sufficient that the Commission is independent. It must appear to be independent also,” the Bench said.
Advertisement
The court’s observations came during the hearing of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
In the course of the hearing, the court repeatedly underscored that the core issue was whether the present mechanism satisfies the constitutional requirement of an independent Election Commission under Article 324, especially when free and fair elections form part of the Constitution’s basic structure.
Questioning the composition of the selection panel comprising the Prime Minister, the Leader of Opposition, and a Union Cabinet Minister nominated by the Prime Minister, the Bench observed that no truly independent member had been included in the process.
Justice Datta noted that even in the appointment of the CBI Director, the Chief Justice of India is part of the selection panel, despite the CBI essentially dealing with criminal investigations and rule of law issues. The court wondered why a similar independent member was absent in appointments to the CEC and the ECs, which are directly concerned with the conduct of free and fair elections and electoral integrity.
When Attorney General R. Venkataramani acknowledged that, in practical terms, a Cabinet Minister in the panel may not differ with the Prime Minister, the court observed that this effectively left the executive in control of the process for the selection of the CEC and the ECs. It further questioned the purpose of including the Leader of Opposition if decisions would invariably end in a 2:1 majority in favour of the government.
The Bench also emphasised that institutional independence was not confined to actual functioning alone, but extended equally to public perception. The Election Commission, it observed, must not only be independent but also appear to be independent.
Defending the law under challenge, the Attorney General argued that the Court could not invalidate legislation merely on apprehensions that the appointment of the CEC and the ECs under it may not be independent. He maintained that the Supreme Court’s 2023 Constitution Bench judgment in Anoop Baranwal was only an interim arrangement operating in the absence of parliamentary legislation.
In the 2023 Anoop Baranwal judgment, the Supreme Court had directed that, until Parliament enacted a law, appointments of the CEC and ECs should be made on the advice of a committee comprising the Prime Minister, the Leader of Opposition, and the Chief Justice of India to ensure the independence of the poll panel.
Senior advocate Vijay Hansaria, appearing for one of the petitioners, contended that the constitutional principles laid down in Anoop Baranwal could not be diluted through legislation that restores executive dominance in appointments.
Advocate Prashant Bhushan argued that bodies performing quasi-judicial functions cannot remain under executive control, particularly when the ruling party itself becomes a litigant before the Election Commission in electoral disputes.
The hearing remained inconclusive and will continue next week.
Advertisement
