Centre tells SC no judge needed in EC selection panel:Says Constitution leaves decision to Parliament

The central government told the Supreme Court of India that there is no constitutional requirement for a judge to be part of the committee that appoints the Chief Election Commissioner (CEC) and Election Commissioners (ECs). The Centre said the inclusion of a judge in the selection panel can be a policy decision taken by Parliament, but it cannot be treated as a constitutional compulsion. Hearing on challenge to 2023 law The Supreme Court was hearing petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. Under this law, the appointment of the CEC and Election Commissioners is made by a three-member committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Minister nominated by the Prime Minister. The law replaced an interim arrangement ordered by the Supreme Court in 2023, under which the Chief Justice of India (CJI) was part of the panel. 2023 Supreme Court order was interim: Centre The government argued that the Supreme Court’s March 2023 judgment clearly stated that the inclusion of the CJI in the committee was only a temporary arrangement until Parliament enacted a law on the appointment process. It said that now that Parliament has passed a law, the interim arrangement automatically ceases to apply. In March 2023, the Supreme Court had ruled that until a law was made, appointments to the Election Commission should be recommended by a committee consisting of the Prime Minister, the Leader of the Opposition, and the CJI. The new law came into effect on January 2, 2024, removing the CJI from the panel and replacing the post with a Union Minister. Government’s key arguments The Centre presented four main arguments before the court: The Constitution does not state that a judge must be part of the appointment committee for the Election Commission. Parliament has the authority to decide the composition of the panel, and judicial inclusion is not mandatory. The Election Commission’s independence is ensured through constitutional safeguards such as fixed tenure, protection from arbitrary removal and legal protections. The 2023 law retains these safeguards and introduces a transparent process for appointments. The government also said no instance has been shown where elections became unfair solely because of the government’s role in the appointment process. Supreme Court had questioned selection process During an earlier hearing on May 14, the Supreme Court had questioned the role of the Leader of the Opposition in the panel and remarked that if the government ultimately makes the decision, then keeping the Opposition leader in the committee may appear to be only a formality. On May 6, the bench had also asked whether the court could direct Parliament to make a new law, noting that law-making falls within Parliament’s exclusive domain. Rahul Gandhi raised concerns in separate appointment meeting Earlier this week, Rahul Gandhi objected to the process followed in the selection of the new Central Bureau of Investigation Director during a meeting held at the Prime Minister’s residence on May 12. Rahul said he was not given details of all 69 shortlisted candidates and alleged that the government had reduced the selection process to a formality. He said the Leader of the Opposition was “not a rubber stamp.”