The Supreme Court on Thursday questioned the prolonged delay by Parliament in enacting a statutory framework governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), observing that the continued absence of such a law until judicial intervention in 2023 reflected what it described as the ‘tyranny of the elected’.
The Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma made these observations while hearing 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 legislation removed the Chief Justice of India (CJI) from the appointment panel and replaced the office with a Union Cabinet Minister nominated by the Prime Minister.
The Court remarked that it was compelled to examine why Parliament had failed to exercise its legislative mandate under Article 324(2) of the Constitution for nearly seven decades until the Supreme Court intervened in Anoop Baranwal v. Union of India. Justice Datta also observed that the speed with which Election Commissioners were appointed under the new law contrasted sharply with delays in judicial appointments, remarking that similar urgency was not seen in the appointment of judges.
Under the 2023 Act, appointments to the posts of CEC and ECs are made by a selection committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister.
Senior Advocate Vijay Hansaria, appearing for Congress leader Jaya Thakur, argued that the appointment process followed in March 2024 lacked effective consultation and procedural fairness. Referring to the appointment of Gyanesh Kumar and Sukhbir Sandhu as Election Commissioners, he contended that the selection process was conducted in undue haste and effectively concentrated decision-making power within the executive.
Hansaria submitted that on March 9, 2024, a meeting of the selection committee was initially scheduled for March 15 to fill one vacancy. However, after Election Commissioner Arun Goel resigned on the same day, resulting in a second vacancy, the meeting was advanced to March 14. He further pointed out that an application seeking stay of the appointment process had been filed before the Supreme Court on March 12 and was originally expected to be considered on March 15.
According to the petitioner, the Leader of the Opposition was supplied with a list of approximately 200 names by the Legislative Secretary only one day prior to the selection meeting because the search committee had failed to shortlist candidates earlier. Hansaria argued that meaningful consultation was impossible under such circumstances. He further submitted that on March 14, the search committee recommended a panel of six names, following which the selection committee met and recommended the appointments of Gyanesh Kumar and Sukhbir Sandhu to the President on the very same day.
The Court, however, declined to accept the allegation that the meeting was advanced to pre-empt judicial scrutiny, noting that no material had been placed on record to substantiate such an assertion.
During the hearing, Advocate Prashant Bhushan, appearing for the Association for Democratic Reforms (ADR), argued that successive governments had avoided framing an independent appointment mechanism because political parties in power benefited from retaining executive control over appointments to the Election Commission. He submitted that this concern had already been recognised in the Constitution Bench judgment in Anoop Baranwal.
Justice Datta observed that the situation reflected what could be described as ‘tyranny of the elected’, drawing a parallel to criticisms often directed at the judiciary as representing a ‘tyranny of the unelected’. Bhushan responded that constitutional democracy cannot permit “tyranny of the majority”, adding that the Constitution and fundamental rights framework exist precisely to prevent concentration of unchecked power.
The Bench further observed that irrespective of which political party comes to power, governments appear reluctant to surrender control over appointments to constitutional bodies. Justice Datta remarked that such a trend was unfortunate for the country and referred to Dr BR Ambedkar’s concerns regarding the functioning of Indian democracy expressed within a few years of the Constitution coming into force.
The petitioners argued that the 2023 legislation diluted the safeguards laid down by the Constitution Bench in Anoop Baranwal, where the Supreme Court had directed that appointments to the Election Commission should, until Parliament enacted a law, be made by a committee comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India.
The Constitution Bench in Anoop Baranwal had held that exclusive executive control over appointments to the Election Commission was inconsistent with the constitutional requirement of institutional independence and electoral neutrality. The Court had described the arrangement existing since the 1950s as a stopgap mechanism that continued due to legislative inaction.
Following that judgment, Parliament enacted the 2023 law replacing the CJI with a Cabinet Minister in the selection panel. The petitions before the Supreme Court contended that the legislation effectively restored executive dominance over appointments and undermined the independence of the Election Commission, which was a constitutional authority entrusted with ensuring free and fair elections as part of the basic structure of the Constitution.
The post Supreme Court questions prolonged delay by Parliament in framing law on appointment of Election Commissioners appeared first on India Legal.