The Supreme Court on Wednesday agreed to urgently hear on March 15 a plea which said the Centre could take “unfair advantage” while filling the two vacancies of Election Commissioners (ECs) in the Election Commission of India (ECI) following the unexpected resignation of Arun Goel ahead of the Lok Sabha elections.
A Bench headed by Justice Sanjiv Khanna agreed to list for hearing the plea by NGO Association for Democratic Reforms, which said the new law on the appointments of ECs should be put on hold.
The NGO said the Chief Justice of India (CJI) should be brought back on board the high-profile selection committee headed by the Prime Minister for appointments of ECs to the top poll body as directed by a landmark Supreme Court judgment in the Anoop Baranwal case of March 2, 2023.
“Now, the Executive has the ability to appoint two Election Commissioners which can give an unfair advantage to the Executive. The role of the Election Commission is critical in ensuring free and fair elections and therefore, the appointments must also be seen to be fair and free from any bias or latches to the government of that time,” the NGO, represented by advocate Prashant Bhushan and Cheryl D’Souza, submitted.
In Anoop Baranwal versus Union of India in March last year, a Constitution Bench headed by Justice K.M. Joseph (now retired) ordered the Chief Election Commissioner (CEC) and two ECs to be appointed by the President on the advice tendered by a committee of Prime Minister, Leader of Opposition in the Lok Sabha or the leader of the single largest party in Opposition and the CJI.
The court had reasoned that “fierce independence, neutrality and honesty” envisaged in the institution of the ECI required an end to government monopoly and “exclusive control” over appointments to the highest poll body.
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However, the government had enacted a new law — The Chief Election Commission and other Election Commissions (Appointment, Conditions of Service and Term of Office) Act, 2023 — to countermand the judgment. The law had replaced the CJI with a Cabinet Minister on the selection committee, giving the Centre a dominant role in the appointments process.
“The ruling government ought not to have the dominant say in the appointment of members of Election Commission… Democracy is a facet of the basic structure of the Constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the Election Commission should be insulated from political and/or executive interference,” NGO argued.
The application filed by the NGO also pointed out that the ECI at present was under the sole charge of CEC Rajiv Kumar.
“In light of the eminent elections, it would not be prudent to leave the post of the Election Commissioners vacant as the role of the Election Commission is critical in assuring free and fair elections, in adjudicating disputes between political parties and in ensuring accurate voter lists and voter turnout,” the application said.
