Judicial member on EC selection panel is legislative choice, not mandate: Centre to SC

The Centre has told the Supreme Court that the Constitution does not mandate judicial representation on the Election Commission (EC) appointment committee and the inclusion of a member representing the judiciary is a "legislative choice, not a constitutional imperative".

The government said the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, does not intrude upon any functions of the EC.

The submissions were made in a counter-affidavit filed by the Centre in the apex court, which is hearing arguments on a batch of pleas challenging the constitutional validity of the 2023 law governing the appointment of the chief election commissioner (CEC) and election commissioners.

The 2023 Act, which came into force on January 2, 2024, mandates that the CEC and election commissioners are appointed by the president on the recommendation of a selection committee consisting of the prime minister, a Union Cabinet minister and the leader of opposition in the Lok Sabha.

The law replaces the chief justice of India (CJI) with a Union Cabinet minister on the three-member selection committee.

"It must be noted that the Constitution does not mandate judicial representation on the Election Commission's appointment committees. Inclusion of a member representing the judiciary is a legislative choice, not a constitutional imperative," the Centre said in its affidavit.

It said any suggestion that judicial participation is necessary to validate appointments "misconceives the separation of powers and Parliament's role under Article 324".

Article 324 of the Constitution says the superintendence, direction and control of elections will be vested in an Election Commission.

"Substantive independence of the Election Commission arises from its constitutional status, security of tenure, removal safeguards and statutory protections of its functions and emoluments. The 2023 Act, while preserving these features, adds procedural transparency in their appointment," the affidavit filed on May 13 said.

It said neither an argument has been made nor substantiated that appointments made as election commissioners prior to the enactment under challenge are open to serious question because the executive wielded exclusive power in making the appointments.

"No case has been made out that only because of appointments made under the authority of the President, free and fair elections were casualties," it said.

The affidavit said the apex court had opined in its March 2, 2023, Anoop Baranwal verdict that it was desirable that the appointment of the CEC and election commissioners be made by the president on the basis of the advice tendered by a committee consisting of the prime minister, the leader of opposition in the Lok Sabha and in case there is no such leader, the leader of the largest party in the opposition in the Lok Sabha in terms of numerical strength, and the CJI.

"However, this court held that the said norm laid down by it via the said judgment will continue to hold good only till a law is made by Parliament on this behalf," it said.

The Centre said the opinion of the court shall not mean that it "binds and ties the hands of Parliament".

It said the top court's directive was admittedly applicable only for the interregnum period from the date of the verdict to the date on which Parliament enacted a law in consonance with Article 324(2).

"The interim period arrangement did not have the status of a declaration of law. Suggestions of such nature cannot be elevated to the status of positive legislation by the courts," the affidavit said.

It said as a vibrant democratic country, India has ever nurtured and preserved the continued existence of democratic institutions, such as the EC, for the peace, prosperity, development and welfare of the citizens.

"Thus, the allegations of petitioners to that of disingenuous motive and premeditation on the part of the government are wholly without any basis. It is well settled that no law duly made by the competent legislature can be challenged on the ground that it was made with an ulterior motive," it said.

The Centre said to indicate, as the petitioners allege, that selection committees without members of the judiciary would invariably be biased, is wholly incorrect.

It said the independence of the CEC or an election commissioner, more than the manner of selection, depends on the individual's functioning and his qualities of professional excellence.

The affidavit said in the absence of any constitutional mandate to make members of the judiciary part of the selection committee, it is baseless to aver that the selection panel provided by Parliament by law, in its collective wisdom, would be biased.

It said the allegation that Parliament, while considering the Bill relating to the 2023 Act, deliberately suspended many members of Parliament, is without any basis and constitutionally as well as legally unsustainable.

"It is needless to mention that the conduct of proceedings of the Houses of Parliament rests with the Chair, either the Speaker, Lok Sabha, or the Chairperson, Rajya Sabha, which cannot be a subject matter of question before any forum," the Centre said.

The affidavit said no allegation has ever been raised regarding the credentials or suitability of any election commissioner appointed thus far.