Why this show-off about independence in appointment of CEC/ECs when it can be decided by govt? SC to Centre

NEW DELHI: Questioning the appointment process for chief election commissioner/election commissioners where a panel of PM, a Cabinet minister and the leader of opposition, pick the candidate, Supreme Court on Thursday said that the present system allows the govt to appoint a person of its choice as two out of three member would favour it and asked govt why this “show-off about independence” in appointment process. It said that an independent person should be made part of panel in place of minister.

Referring to SC's earlier direction that the panel should comprise of PM, CJI and LoP, a bench of Justices Dipankar Gupta and Satish Chandra Sharma said that it was not necessary that the CJI participate in the process but some independent person has to be part of it or the presence of the LoP would become just ornamental. It said that when a CBI director is appointed by an independent panel of PM, CJI & LoP, then why should the same not be the practice for CEC/ECs which is more important as the institution is involved in upholding democracy and ensuring free and fair elections in the country.



Though attorney general K Venkataramani submitted that the neutrality and independence of CEC/ECs arises from their functioning after their appointment, the bench, however, said that it started from the appointment process itself. The court said that the poll panel should not only act as neutral but it should also appear neutral.

"Why should a minister from the Cabinet be part of it? Let us assume the ruling party has 300 MPs. The PM picks 25 of his best. Now you again micromanage it and bring one from the 25. Why? Why do you then include the leader of the opposition? He is ornamental. A minister will never go against the PM. It will always be decided by 2:1. Why this show-off of independence in the body?," the bench observed.

The court is examining the validity of law — CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act-- which was framed after the apex court had passed the order that appointments be done by a panel of PM, CJI and LoP to infuse independence in the process. A bunch of petitions were filed including by Congress functionary from MP Jaya Thakur alleging that the new law amounts to undoing of SC's order and paved the way for govt to appoint its "yes men" to the crucial post.

As deliberations leading to search, selection and appointment of Gyanesh Kumar (now CEC) and S S Sandhu as election commissioners in 2024 came under the scanner, with the petitioner alleging that it was done in a tearing hurry in a day just before the apex court’s crucial hearing, the bench asked the Centre to bring original records before it. Kumar was appointed election commissioner to the Election Commission of India on March 15, 2024 after his superannuation on Jan 31.

The court further pointed out that it is the executive govt which is at the controlling position in deciding appointments in the poll panel. It said CJI is part of the panel for appointing the director of the CBI which acts for maintenance of law and order and upholding rule of law also. The court said that in comparison to CBI, the role of EC was more crucial as it is involved in maintaining democracy. "We don’t say CJI should be there. But why shouldn’t there be an independent member? Why should it be from the ministry? Let us be very clear. Today the Prime Minister picks one name. And LoP picks another one. There is disagreement. Then the third member will go towards whom?," the bench said.

Contending that the court should resist from going into the legislative arena while deciding the validity of the law, the AG said that there had never been any allegation of CEC/ECs being compromised and being hand-in-glove with govt. He said the country never witnessed any kind of a devastating or sad experience when an election commissioner failed to advance rule of law and there was no reason to doubt the present system in place.