The Supreme Court on Thursday heard arguments challenging the constitutional validity of the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), with petitioners alleging that the legislation was passed in Parliament with “virtually no debate” before being approved through a voice vote.A bench of Justices Dipankar Datta and Satish Chandra Sharma questioned whether courts could direct Parliament to enact laws in a particular manner, while hearing a batch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.The law replaced the Chief Justice of India (CJI) in the selection panel with a Union cabinet minister nominated by the prime minister. Under the current framework, the selection committee consists of the prime minister, a Union cabinet minister and the leader of opposition in the Lok Sabha.At the outset, Justice Datta referred to one of the petitions seeking directions to Parliament to frame a law regulating appointments to the Election Commission. “Come back to the prayers… It has asked Parliament to make a law. Can the court ask Parliament to make a law? Could this be maintainable,” the judge asked. Senior advocate Prashant Bhushan, appearing for the Association for Democratic Reforms (ADR), argued that the legislation undermined the autonomy of the Election Commission by placing appointments under executive dominance. “There was virtually no debate because a number of MPs were suspended. Mr Owaisi had submitted strongly that this Act goes against the Anoop Baranwal (judgment) and made the appointment totally on subjective satisfaction of the government,” Bhushan told the court. “There was no attempt, it seems by the government, to defend this. They just moved a resolution and in a voice vote, it was passed,” he added.Senior advocate Vijay Hansaria, appearing for one of the petitioners, argued that the law departed from the constitutional principles laid down in the Supreme Court’s 2023 Anoop Baranwal judgment, which had directed that appointments to the Election Commission be made by a committee comprising the prime minister, the leader of opposition and the CJI until Parliament enacted a law.Hansaria argued that the judgment was not merely an interim arrangement but recognised the constitutional necessity of insulating the Election Commission from executive influence. “The constitutional requirement is an independent Election Commission,” he submitted, adding that the framers of the Constitution envisaged an autonomous body to ensure free and fair elections.Drawing parallels with the National Judicial Appointments Commission (NJAC) case, Hansaria argued that constitutional institutions performing critical democratic functions could not be subjected to executive dominance.Justice Datta, however, repeatedly observed that the Anoop Baranwal ruling had only filled a constitutional vacuum until Parliament enacted legislation. “This judgment was only to fill the vacuum till the law is made. There is no observation that the law should be framed in a particular manner,” the bench observed.When Hansaria argued that laws framed by Parliament must still conform to constitutional principles identified by the Supreme Court, Justice Datta asked: “Is there any observation in the judgment that when Parliament frames the law, this judgment has to be kept in mind?”Hansaria also raised concerns over the appointment process followed in March 2024 for current Election Commissioners Gyanesh Kumar and Sukhbir Singh Sandhu. He said the leader of opposition was given nearly 200 names on March 13, followed by a shortlist of six names the next day, when the selection committee met and finalised the appointments. “How can the leader of opposition be expected to look into so many names in one day?” Hansaria argued.Senior lawyer Shadan Farasat told the court that 95 opposition MPs in the Lok Sabha and 12 MPs in the Rajya Sabha had been suspended around the time the Bill was passed in Parliament.The petitions challenging the law have been filed by several parties, including Congress leader Jaya Thakur and the Association for Democratic Reforms. The hearing will continue next Thursday.This comes a day after the Supreme Court refused to adjourn the matter despite the Centre’s request, with the bench describing the challenge to the Election Commissioners appointment law as “more important than any other matter” while referring to the ongoing Sabarimala-related hearings before a nine-judge Constitution bench.Read more: ‘More important than any other matter’ – SC refuses to adjourn hearing on EC appointments law
