Supreme Court questions Centre over ‘show of independence’ in Election Commission appointments

New Delhi: The Supreme Court on Thursday observed that "it is not sufficient that the Election Commission of India is independent, but it should also appear to be independent" and that ECI "can be independent only if it has independent commissioners".

Justices Dipankar Datta and Satish Chandra Sharma cornered the Centre over "show of independence" in appointing chief election commissioner and election commissioners through a selection committee comprising the PM, a Union Cabinet minister and Lok Sabha's leader of the Opposition.

Justice Datta verbally asked attorney general R Venkataramani: "Why do you put up this show of independence? The role of leader of the Opposition is ornamental. Will a Cabinet minister go against the prime minister?". He added: "Why should it be a Cabinet minister who selects? Election commissioners should be selected by a neutral person."


The judge was referring to the composition of the selection committee and the fact that in case of dissent by leader of the Opposition, the Cabinet minister will side with the PM and their decision will sail through with a majority 2:1 vote.

The development took place during the hearing of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The law was passed by Parliament in December 2023 and received the President's assent on December 29, 2023. The petitioners argue that the law is violative of the SC's 2023 judgment since it excludes the CJI from the appointment process.

Justice Datta also orally questioned the AG the rationale of excluding CJI from the selection panel whereas CJI is a member of the panel selecting CBI director.

Justice Datta questioned: "...Why not for the appointment of election commissioners?" He clarified that the bench is not making a point that only CJI should be a part of the selection panel and insisted that a "neutral person" should be part of the panel that selects members of ECI.

"We are not saying anything about CJI's inclusion. If at all (CJI were to be part of the committee), we leave it to Parliament. We are not here to legislate. We are here to interpret the law. At best, it can be said it (the Act) is violative of Article 14 (after examining the case)," justice Datta said.

The judge remarked that it is the remit of legislature to make laws, but SC is "the final arbiter of law, whether you like it or not". He added that the "Parliament may attribute anything to us (judiciary). But we know our Lakshman rekha".

Significantly, the bench orally asked the AG to "keep the records ready" pertaining to the recent appointment of members of ECI, including the selection of Sukhbir Singh Sandhu. "Please get the records," Justice Datta asked the AG.

The bench asked as to which is the most significant legislation according to him. Referring to the situation in Nepal, the AG replied that the independence of judiciary is supreme. Justice Datta remarked: "If I say election laws, would it be wrong?. Without democracy we have nothing."