The Supreme Court on Thursday said free and fair elections are a part of the basic structure of the Constitution, and this cannot be ensured unless the Election Commission is independent and also appears to be independent. The Court also questioned the rationale behind including a Union Cabinet Minister in the selection committee for appointing the Chief Election Commissioner and Election Commissioners, while hearing challenges to the Election Commissioners Act, 2023.
A bench comprising Justices Dipankar Datta and Satish Chandra Sharma made the observations during the final hearing on a batch of six petitions challenging the constitutional validity of a new law governing the appointment of the Chief Election Commissioner (CEC) and the Election Commissioners (EC).
“It is not sufficient to be independent but it has to appear to be independent…The third member should be somebody who is a neutral person. He should select. Why should it be a Minister from the Cabinet??” Justice Datta asked Attorney General R Venkataramani during the hearing. Venkataramani said that the perception of independence is important, and it will be shown from the actions taken by the Election Commissioners once they are appointed.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into force on January 2, 2024, mandates that the CEC and the ECs 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 with a Union Cabinet Minister on the three-member Selection Committee.While hearing the submissions of Attorney General R Venkataramani on behalf of the Centre, Justice Datta said, "It is not sufficient for the Election Commission to be independent; it has to appear to be independent."
The attorney general mounted a robust defence, asserting that Parliament has the absolute right to legislate and is not bound to follow the "stop-gap" arrangement suggested by a five-judge bench in the Anoop Baranwal judgment.The Baranwal judgment was an exercise of Article 142 (discretionary power to do complete justice) and did not constitute a binding law under Article 141 that could override an Act of Parliament.The Centre's counsel said the bench should not strike down a law based on hypothetical bias.
"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," Venkataramani said.He cautioned the bench against "entering the legislative arena" or acting as a "second chamber of Parliament."Justice Datta said independence of the Election Commission is a facet of the "basic structure" of the Constitution, as free and fair elections depend on it.
"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?" the bench asked.Referring to the attorney general's submissions on judicial overreach, Justice Datta emphasised the mutual respect between the organs of the State."Parliament may attribute anything to the judiciary, but we know our Lakshman Rekha. We will never do that," he said.
"Their (the petitioners') first prayer is against the validity of the law. If that fails, no other prayer survives," the attorney general submitted."The question whether the Election Commission is independent cannot be answered in the abstract. It is a question of fact and evidence," he argued, "If the court decides what the best manner to appoint election commissioners is, then the court enters the legislative arena.""We have to eat the pudding to know whether the pudding is bad or not," Venkataramani said, defending the new law.
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