The Centre on Wednesday stoutly defended in the Supreme Court its decision to exclude the Chief Justice of India from the committee to select election commissioners.

The government said the “independence of the Election Commission or any other organisation or authority does not arise from and is not attributable to the presence of a judicial member in the selection committee”.

The Centre’s affidavit comes against the backdrop of pleas filed by the NGO Association for Democratic Rights and Congress leader Jaya Thakur challenging The Chief Election Commissioner & Other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023.

The petitioners claimed that the 2023 law was a blatant violation of a five-judge constitution bench judgment in the Anoop Baranwal case last year that mandated the presence of the CJI along with the Prime Minister and the leader of the Opposition in the selection committee.

Under the new act, the three-member selection panel comprises the Prime Minister, the leader of the Opposition and a cabinet minister.

“The case of the petitioners is premised on one fundamental fallacy that the independence can only be maintained in any authority when the selection committee is of a particular formulation. It must be noted that the independence of the Election Commission or any other organisation or authority does not arise from and is not attributable to the presence of a judicial member in the selection committee,” the affidavit filed on behalf of the Union law ministry stated.

“It is submitted that equally the presence of senior government functionaries on the Selection Committee cannot… itself be a ground to automatically assume bias on behalf of the committee.

“…The high constitution functionaries ought to be presumed to act fairly and in good faith in the public interest. To indicate… that selection committees without judicial members would invariably be biased is wholly incorrect. Such an argument would read an implied limitation into the otherwise plenary power of Article 324(2) which is impermissible,” the affidavit added.

Opposing the plea for a stay on the law, the Centre argued: “When the legislature has enacted a law which is to be presumed to be constitutional, replacing the regime so established would be impermissible. It is submitted that the said exercise, either at an interim stage or at a final stage, would be erroneous.”

“Any interim order in the nature of the one sought by the petitioners would amount to a stay of the statute validly passed by Parliament, at
an interim stage, which is an exercise impermissible within the confines of judicial review,” it added.

According to the government, the appointment of election commissioners was purely an executive decision under Article 324(2) of the Constitution, which could
be superseded only by a law made by Parliament. Therefore, the element of Parliament being the custodian of the decision as to the mode, method and manner of appointment of chief election commissioner and election commissioners is provided in the Constitution itself, the government contended.

The government argued: “It is critical to note that prior to the enactment of the Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Terms of Office) Act, 2023, from 1950 till 2023 — for 73 years, the appointment of the Election Commissioners was being made by the Executive exclusively. As far as interim relief as sought by the petitioners is concerned, the said fact belies all claims of partiality.”

The government added that the Supreme Court had passed the judgment in the Anoop Baranwal case “on the basis of what it thought of as a ‘vacuum’, provided for a ‘stopgap’ arrangement, until the constitutionally envisaged process of the Parliament ‘stepping in’ takes place…”.

“It is submitted that where the Constitution itself specifically vests Parliament with the power to decide upon the appointments of the Election Commissioner and Parliament exercises this power, no question of ‘legislative overruling’ can arise. The judgment in Baranwal supra had been conscious of the fact that the ultimate decision-making power in this regard lay with Parliament and so it had consciously evolved a time-limited mechanism for appointment to the Election Commission. This mechanism was to last only till the time that Parliament made a law on the subject.”