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Bill on Election Commission members’ appointment: Does the law breach the SC verdict?

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Published : Aug 10, 2023, 5:20 PM IST

Updated : Aug 10, 2023, 6:13 PM IST

Centre has used one sentence of the apex court judgment and brought a law with the view of overturning the effect of the court’s verdict on the appointment of the CEC and ECs. -- Writes ETV Bharat's Sumit Saxena.

A five-judge bench of the Supreme Court had unanimously ruled that a high-power committee consisting of the Prime Minister, the Leader of the Opposition in Lok Sabha, and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs). However, the top court had also said that this norm will continue to hold good till a law is made by the Parliament.
Election Commission of India (File photo)

New Delhi: A five-judge bench of the Supreme Court had unanimously ruled that a high-power committee consisting of the Prime Minister, the Leader of the Opposition in Lok Sabha, and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs). However, the top court had also said that this norm will continue to hold good till a law is made by the Parliament.

It is apparent that the Centre has used this one sentence in the apex court judgment and brought a law which is apparently against the spirit of the apex court’s verdict on the appointment of the CEC and ECs. A Bill was listed to be introduced Thursday in the Rajya Sabha.

The apex court, in its verdict delivered on March 2, said: “We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India”. The apex court added, “This norm will continue to hold good till a law is made by the Parliament”.

According to the bill – ‘Appointment and term of chief election commissioner and other Election Commissioners’ – the three-member committee will consist of the Prime Minister as the Chairperson. The other two members will be the Leader of Opposition in the House of the People-Member and a Union Cabinet Minister to be nominated by the Prime Minister-Member.

The apex court had delivered the judgment on a 2015 PIL challenging the constitutional validity of the practice of the Centre-appointed members of the Election Commission. A two-judge bench of the apex court in 2018, had referred the case to a larger bench since it required a close examination of Article 324 of the Constitution, which deals with the role of a CEC.

Supreme Court advocate Prashant Bhushan, in a tweet, said: “This bill moved by the govt to negate the CB judgement of the SC mandating the appt of the ECs by a committee of the PM, LOP & CJI; &again seeking to control the appt of ECs will be unconstitutional, since the SC has emphasized that the appt of ECs must be indep of govt control”.

The apex court, in its judgment, had said: “The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission”.

The Parliament has the power to nullify the court's verdict by addressing the concerns flagged in the judgement. Noting the presence of legislative vacuum, the apex court had said: “In order to fill the legislative vacuum, i.e. the absence of any law made by the Parliament for the appointment of members of the Election Commission and in the light of the views expressed in various reports of the Law Commission, Election Commission, etc., this Court is of the considered view that the instant case thus aptly calls for the exercise of the power of this Court under Article 142 to lay down guidelines to govern the process of selection and removal of Chief Election Commissioner and Election Commissioners, till the Legislature steps in”.

Filling that vacuum is well within the purview of the Parliament, however, the question which emerges now is that does the law breach the spirit of the Supreme Court judgment? Could the law be contradictory to the ruling?

Also read: Bill to override Supreme Court order in the appointment process of CEC and ECs to be introduced in Rajya Sabha

New Delhi: A five-judge bench of the Supreme Court had unanimously ruled that a high-power committee consisting of the Prime Minister, the Leader of the Opposition in Lok Sabha, and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs). However, the top court had also said that this norm will continue to hold good till a law is made by the Parliament.

It is apparent that the Centre has used this one sentence in the apex court judgment and brought a law which is apparently against the spirit of the apex court’s verdict on the appointment of the CEC and ECs. A Bill was listed to be introduced Thursday in the Rajya Sabha.

The apex court, in its verdict delivered on March 2, said: “We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India”. The apex court added, “This norm will continue to hold good till a law is made by the Parliament”.

According to the bill – ‘Appointment and term of chief election commissioner and other Election Commissioners’ – the three-member committee will consist of the Prime Minister as the Chairperson. The other two members will be the Leader of Opposition in the House of the People-Member and a Union Cabinet Minister to be nominated by the Prime Minister-Member.

The apex court had delivered the judgment on a 2015 PIL challenging the constitutional validity of the practice of the Centre-appointed members of the Election Commission. A two-judge bench of the apex court in 2018, had referred the case to a larger bench since it required a close examination of Article 324 of the Constitution, which deals with the role of a CEC.

Supreme Court advocate Prashant Bhushan, in a tweet, said: “This bill moved by the govt to negate the CB judgement of the SC mandating the appt of the ECs by a committee of the PM, LOP & CJI; &again seeking to control the appt of ECs will be unconstitutional, since the SC has emphasized that the appt of ECs must be indep of govt control”.

The apex court, in its judgment, had said: “The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission”.

The Parliament has the power to nullify the court's verdict by addressing the concerns flagged in the judgement. Noting the presence of legislative vacuum, the apex court had said: “In order to fill the legislative vacuum, i.e. the absence of any law made by the Parliament for the appointment of members of the Election Commission and in the light of the views expressed in various reports of the Law Commission, Election Commission, etc., this Court is of the considered view that the instant case thus aptly calls for the exercise of the power of this Court under Article 142 to lay down guidelines to govern the process of selection and removal of Chief Election Commissioner and Election Commissioners, till the Legislature steps in”.

Filling that vacuum is well within the purview of the Parliament, however, the question which emerges now is that does the law breach the spirit of the Supreme Court judgment? Could the law be contradictory to the ruling?

Also read: Bill to override Supreme Court order in the appointment process of CEC and ECs to be introduced in Rajya Sabha

Last Updated : Aug 10, 2023, 6:13 PM IST

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