Virtually no debate took place in Par while passing law on CEC, EC appointments, SC told

Senior advocate Vijay Hansaria, appearing for one of the petitioners, resumed arguments by contending that the legislation departed from the constitutional principles laid down by the Constitution Bench judgment in the Anoop Baranwal case which had directed that appointments to the Election Commission be made by a committee consisting of the prime minister, the leader of opposition and the CJI until Parliament enacted a law.

There was virtually no debate in Parliament while passing the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), and legislation was passed by a voice vote, the Supreme Court was told on Thursday. This submission was vociferously made by several lawyers before a bench comprising Justices Dipankar Datta and Satish Chandra Sharma during the hearing on a clutch of petitions challenging the constitutional validity of the law governing the appointment of the CEC and ECs which replaced the chief justice of India (CJI) in the selection panel with a Union cabinet minister nominated by the prime minister. Lawyer Prashant Bhushan, appearing for the Association for Democratic Reforms (ADR), argued that the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 undermines the independence of the Election Commission by placing the process of appointments under the sole executive dominance. ''There was virtually no debate because a number of MPs were suspended. Mr Owaisi had submitted strongly that this Act goes against the Anoop Baranwal (judgment) and made the appointment totally on subjective satisfaction of the government,'' he said. ''There was no attempt, it seems by the government, to defend this. They just moved a resolution and in a voice vote, it was passed,'' Bhushan added. At the outset, the bench reiterated its observation whether it can direct Parliament to make a law for regulating appointment procedures of the chief election commissioner and the deputies. Justice Datta referred to a prayer made in one of the petitions asking the top court to direct Parliament to enact a law to regulate the appointment of the CEC and Election Commissioners. ''Come back to the prayers... It has asked Parliament to make a law. Can the court ask Parliament to make a law? Could this be maintainable,'' the judge asked. Continuing with the final hearing on pleas on the second day, the bench heard detailed submissions of the law from various lawyers. Under the 2023 law, the selection committee for appointing the CEC and ECs comprises the prime minister, a Union cabinet minister and the leader of opposition in the Lok Sabha. Senior advocate Vijay Hansaria, appearing for one of the petitioners, resumed arguments by contending that the legislation departed from the constitutional principles laid down by the Constitution Bench judgment in the Anoop Baranwal case which had directed that appointments to the Election Commission be made by a committee consisting of the prime minister, the leader of opposition and the CJI until Parliament enacted a law. Hansaria said the Baranwal ruling was not confined merely to prescribing an interim composition of the committee, but had also articulated the constitutional requirement that the Election Commission remained insulated from executive interference to preserve free and fair elections. ''The constitutional requirement is an independent Election Commission,'' he submitted, adding that the framers of the Constitution envisaged an autonomous constitutional authority to ensure the purity of elections. Justice Datta, however, repeatedly questioned whether the Constitution Bench judgment mandated Parliament to legislate in a particular manner. ''Is there any observation in the judgment that when Parliament frames the law, this judgment has to be kept in mind?'' Justice Datta asked. Hansaria responded that any law enacted by Parliament must still conform to constitutional principles identified by the Supreme Court. ''Like the judiciary, even the Election Commission is the watchdog of democracy,'' he argued. Drawing parallels with the Supreme Court's reasoning in the National Judicial Appointments Commission (NJAC) judgment, Hansaria contended that constitutional institutions exercising critical democratic functions could not be subjected to executive dominance. Senior lawyer Shadan Farasat submitted that 95 opposition MPs in the Lok Sabha and 12 MPs in the Rajya Sabha had been suspended around the time the Bill was passed. Justice Datta, however, observed that the Anoop Baranwal judgment had merely filled a constitutional vacuum until Parliament enacted legislation. ''This judgment was only to fill the vacuum till the law is made. There is no observation that the law should be framed in a particular manner,'' the bench observed. Hansaria clarified that he was not challenging the appointments of current ECs Gyanesh Kumar and Sukhbir Singh Sandhu but was using the circumstances surrounding their appointments to demonstrate the dangers of concentrating power in the executive. He told the court that the leader of opposition had received a list of nearly 200 names on March 13, 2024, followed by a short list of six names on March 14, the very day the selection committee met and recommended Kumar and Sandhu. Both were sworn in the next day. ''How can the leader of opposition be expected to look into so many names in one day?'' Hansaria said. The hearing will continue next Thursday. The law has been challenged by multiple petitioners, including Congress leader Jaya Thakur and the ADR.