The Supreme Court of India on Wednesday observed that it is for the Parliament to enact a law governing the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners, and that courts cannot direct the legislature on what kind of law it should make.
The court further noted that the inclusion of the Chief Justice of India (CJI) in the selection panel along with the Prime Minister and the Leader of the Opposition through its March 2, 2023 judgment was only an interim arrangement made in the absence of a law.
These observations were made by a bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma during the hearing 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 Act excludes the CJI from the selection panel for appointing the CEC and Election Commissioners.
Questioning whether the judiciary could direct Parliament to include the CJI in the selection panel, the bench observed, “It is the prerogative of Parliament to make the law. Courts cannot direct Parliament to enact a law.”
Senior advocate Vijay Hansaria, appearing for one of the petitioners, argued that the norms laid down by the Constitution Bench were rooted in constitutional principles ensuring independence in appointments and preventing exclusive executive control. He submitted that the law enacted by Parliament could still be tested on the touchstone of Article 14.
The court also declined Solicitor General Tushar Mehta’s request for adjournment, citing his engagement before a nine-judge Bench hearing the Sabarimala reference case. The bench remarked that while all matters are important, the present case had been scheduled well in advance and warranted priority.
Referring to Constituent Assembly debates, Hansaria argued that the framers of the Constitution had envisaged an independent process for appointing Election Commissioners, free from government control. He contended that the current law tilts the process in favour of the executive.
Senior advocate Gopal Sankaranarayanan, appearing for another petitioner, argued that Parliament cannot enact a law that effectively grants exclusive control over appointments to the executive.
He maintained that the 2023 Constitution Bench ruling had held such exclusivity to be inconsistent with the constitutional scheme, and any deviation would require a constitutional amendment.
The matter will continue to be heard on Thursday.
The Supreme Court is examining a batch of petitions challenging the constitutional validity of the 2023 Act, particularly the exclusion of the CJI from the selection panel. Petitioners, including the Association for Democratic Reforms, Jaya Thakur, Sanjay Narayanrao Meshram, and advocate Gopal Singh, have questioned Sections 7 and 8 of the Act.
Section 7 provides that the CEC and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee comprising the Prime Minister as Chairperson, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.
Section 8 states that the Selection Committee shall regulate its own procedure in a transparent manner for selecting the CEC and Election Commissioners.
The petitioners argue that removing the CJI from the panel and replacing the position with a Union Cabinet Minister nominated by the Prime Minister tilts the balance in favour of the government and makes the process vulnerable to partisan influence.
They have also relied on the Supreme Court’s March 2, 2023 judgment, which had directed that, until a law was enacted, appointments should be made by a committee comprising the Prime Minister, the Leader of the Opposition, and the CJI to ensure independence, impartiality, and constitutional compliance.
According to the petitioners, the 2023 law overrides this interim arrangement and dilutes the spirit of the Supreme Court’s earlier judgment.