CJI on panel to pick CEC not statutory need: Govt

NEW DELHI: Justifying the decision to drop the CJI from the appointment panel for the chief election commissioner and election commissioners (ECs), Centre has told Supreme Court that the Constitution does not mandate judicial representation on the Election Commission appointment committee and inclusion of a member representing the judiciary is a legislative choice, not a constitutional imperative.

Seeking to introduce greater independence in the appointment process, a five-judge SC bench in 2023 had ruled that, as a stopgap measure, appointments should be made by a panel comprising the PM, the CJI and the leader of opposition (LoP) until a law was framed. Subsequently, Parliament enacted the CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, under which the appointment committee comprises the PM, a cabinet minister and the LoP. The validity of the law is now under challenge before the SC.

Also read: Present set-up lets govt pick CEC, ECs of its choice, SC says
In an affidavit, govt countered the petitioner’s argument that the EC’s independence would be compromised by replacing the CJI with a cabinet minister.

It said there was no flaw in the law passed by Parliament and that “free and fair elections had never been casualties” even when appointments were made solely by the executive, as had been the practice for over seven decades. Referring to the fact that all previous CECs and ECs had been appointed by the executive, govt said the suggested nexus between exclusive executive authority in appointments and lack of institutional independence was hypothetical.

“Hence, 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 committee provided by Parliament, by law, in its collective wisdom would be biased,” the affidavit said. “The question is not as to what should be the procedure for appointment, which will be endorsed by this court, but whether any such examination by this court is available at all.”

Govt said it would be “inappropriate, legally unsustainable and premised on a fundamental fallacy” to allege, without basis, that independence of a constitutional authority can be ensured only when the selection panel follows a particular formulation.

“Thus, the allegations of petitioners to that of disingenuous motive and premeditation on the part of govt 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 affidavit also said the presence of senior govt functionaries in the selection committee, along with the LoP, cannot by itself be grounds to presume bias, as constitutional functionaries must be presumed to act fairly and in good faith in public interest.

Calling the 2023 law a “significant improvement” over the earlier system, govt said it provides a “more democratic, collaborative and inclusive” process for appointing election commissioners, in line with the spirit of Article 324(2) of the Constitution.

“Significantly, no allegation has ever been raised regarding the credentials or suitability of any election commissioner appointed thus far,” it said, adding that attempts to generate political controversy based on “vague, unsupported and speculative assertions” about appointments were unfair and unsustainable.