The Supreme Court of India addressed a crucial question on Wednesday regarding the necessity for the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) to align with the principles established in a prior judgment by its constitution bench. This inquiry arose during the hearing of a challenge against the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
Justice Dipankar Datta noted the limitations of the Supreme Court’s authority, stating, “The Supreme Court cannot mandate the creation of a law. Are we to interpret the extensive observations—spanning over 300 pages—as merely a justification for the interim measures the court established until a suitable law is enacted? Should the newly formed law adhere to those observations?”
Alongside Justice S C Sharma, the bench further questioned whether the earlier findings from the 2023 ruling were intended solely to support a temporary appointment framework or if they could serve as grounds for contesting the new legislation.
Earlier in March 2023, a five-judge constitution bench, in the case of ‘Anoop Baranwal v Union of India’, analyzed Article 324(2) of the Constitution. This article mandates that Parliament create a law to define the selection criteria, service conditions, and tenure for the CEC and ECs. The court indicated that until such legislation was passed, appointments should be made based on the recommendations of a committee comprising the Prime Minister, the leader of the Opposition in the Lok Sabha, or, if unavailable, the leader of the largest opposition party in the Lok Sabha, along with the Chief Justice of India.
In response, Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which stipulates that the Selection Committee will include the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition in the Lok Sabha. This change sparked petitions in the Supreme Court, arguing that the exclusion of the Chief Justice of India would undermine the impartiality of the appointment process.
The 2023 Supreme Court ruling investigated the debates held in the Constituent Assembly to determine the intentions of the Constitution’s framers regarding the appointment process, while also considering analogous constitutional provisions. The court concluded that the Constitution necessitated a law enacted by Parliament, indicating that the executive should not have unilateral control over Election Commission appointments.
Senior Advocate Vijay Hansaria, representing Congress leader Jaya Thakur, one of the petitioners, contended that the process of appointment remains unchanged from before the 2023 ruling; it continues to rest in the hands of the executive. “What has altered? The appointments are still made by the President on the advice of the Prime Minister and a Minister designated by the Prime Minister. The fundamental situation remains the same,” he asserted, adding that previous appointments were governed by the Rules of Business, which have now been superseded by this new law.
In response to Hansaria’s assertions that various committees and the Law Commission had indicated that the appointment of ECs should not be left solely to the executive, Justice Datta inquired whether a 2002 report from a committee led by former Chief Justice M N Venkatachaliah recommended the inclusion of the Chief Justice in the selection panel.
Hansaria replied that it did not, but he emphasized that the intention was to prevent the Prime Minister from having total control over the process. Justice Datta then questioned if the absence of the Chief Justice in the recommendations was due to potential inconveniences. Hansaria refuted this, highlighting that the Chief Justice is part of the selection committee for the CBI Director, indicating no issues of inconvenience should arise.
Senior Advocate Gopal Sankaranarayanan, who also challenged the 2023 law, argued that the only way Parliament could have overturned the Supreme Court’s ruling was through a constitutional amendment. “The norms established in Anoop Baranwal were meant to apply until a law was enacted. The expectation was that any law created would be in line with the court’s judgment,” he maintained.
