The Supreme Court on Thursday emphasised that the sanctity of the democratic process hinges on a truly autonomous Election Commission, observing that free and fair elections are an integral part of the “basic structure” of the Constitution.
A bench of Justices Dipankar Datta and Satish Chandra Sharma made these observations during the final hearing on a batch of six 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 2023 Act, which came into effect on January 2, 2024, revamped the selection process for the nation’s top poll officers. Under the new statute, the Chief Election Commissioner (CEC) and Election Commissioners (ECs) are appointed by the President based on the recommendation of a Selection Committee.
This committee comprises:
- The Prime Minister
- A Union Cabinet Minister
- The Leader of the Opposition in the Lok Sabha
The primary contention raised by petitioners is that this law replaces the Chief Justice of India (CJI) with a Union Cabinet Minister on the panel, potentially tipping the balance in favour of the executive.
During the proceedings, Justice Dipankar Datta stressed the importance of public perception regarding the Commission’s neutrality.
“It is not sufficient for the Election Commission to be independent; it has to appear to be independent,” Justice Datta remarked. Addressing the composition of the selection panel, the bench questioned why a Cabinet Minister was chosen over a neutral figure. “The level of confidence must be to that degree [that it must appear] as if there had been a third neutral person in the selection committee. Why should it be a minister from the cabinet?”
Defending the legislation, Attorney General R. Venkataramani argued that Parliament possesses the absolute right to legislate on this matter. He asserted that the Supreme Court’s previous “stop-gap” arrangement in the Anoop Baranwal judgment—which included the CJI in the selection process—was an exercise of discretionary power under Article 142 and did not permanently bind the legislature.
The Attorney General cautioned the court against “entering the legislative arena” or acting as a “second chamber of Parliament.”
Addressing the concerns of potential executive bias, Venkataramani stated, “We have to eat the pudding to know if it is bad. Unless the ECs demonstrate a lack of independence in their actual functioning, the law cannot be held invalid.” He argued that the court should not strike down a law based on “hypothetical bias.”
Appearing for the NGO ‘Lok Prahari’, former IAS officer S.N. Shukla described the Act as a “fraud on the Constitution.” He alleged that the government bypassed judicial safeguards by concealing vital information from Parliament during the Bill’s passage.
Shukla further argued that the current selection process is effectively a “one-man show,” where the Leader of Opposition’s dissent can be easily overridden by the two government representatives. He also specifically challenged the credentials of the incumbent appointees, alleging they were selected based on “political considerations.”
However, Justice Satish Chandra Sharma defended the professional background of the appointees. “They are IAS officers; they have worked as collectors and returning officers. They have the experience in conducting elections,” the judge noted, asking the petitioner to confine arguments to legal principles rather than individual backgrounds.
As the hearing progressed, the bench considered whether the case involves a “substantial question of law” regarding the interpretation of Articles 14 (Right to Equality) and 324 (Superintendence of Elections). The court discussed the possibility of referring the matter to a five-judge Constitution Bench under Article 145(3).
While the Attorney General supported a reference to a larger bench, senior advocates for the petitioners, including Gopal Sankaranarayanan and Shadan Farasat, opposed it, maintained that the current two-judge bench is competent to decide the matter based on existing legal precedents.
The hearing remained inconclusive and is scheduled to continue.
