New Delhi: The Supreme Court on Wednesday agreed to list on March 15, a plea challenging the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act,2023, particularly its Section 7 as being violative of Article 14, basic features of the Constitution and for overruling a constitution bench decision.
The plea was filed by the Association for Democratic Reforms, represented by advocates Prashant Bhushan and Cheyrl D'souza. Bhushan mentioned the plea before a bench led by Justice Sanjiv Khanna. The bench said the matter will be listed on Friday.
The plea said the appointment of two new election commissioners should be as per the apex court’s judgment, which mandated the presence of the Chief Justice of India on the selection panel.
“It is pertinent to mention that the Chief Justice of India has been removed and cabinet minister (to be nominated by the Prime Minister) has been added thereby restoring the previous law i.e. selection by executive thereby undermining the rule of law and threatening democracy”, said the plea.
The plea sought a stay on the implementation of Section 7 of the Chief Election Commission and other Election Commissions (Appointment, Conditions of Service and Term of Office) Act, 2023. The plea also sought a direction to Centre to appoint the vacant positions of election commissioners till the pendency of the writ petition, in accordance with the selection committee laid down by the apex court in Anoop Baranwal v. Union of India.
The plea stressed that the ruling government ought not have the dominant say in the appointment of members of Election Commission, as not only it is responsible for conduct of free and fair elections but also renders an adjudicatory role between the various political parties. Therefore, in order to ensure purity of the election process and for proper implementation of the rule of law, it is in the interest of justice that stay may be granted, it added.
The plea said 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.
The plea said the selection committee which is ex facie dominated and controlled by the members from executive i.e. Prime Minister and Union Cabinet Minister (to be nominated by the PM) renders the selection process vulnerable to manipulation as it gives unfettered discretion to the ruling party to choose someone whose loyalty to it is ensured.
“The fundamental right to equality before law and equal protection of laws guaranteed by Article 14 of the Constitution, clearly includes a right to have the person's rights adjudicated by a forum which exercises its power in an impartial and independent manner. Thus, the impugned section violates Article 14 of the Constitution of India and is incompatible with free and fair elections”, said the plea.
The plea said 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”, said the plea.
