Tyranny of elected & majority: SC on delayed CEC-EC law

NEW DELHI: The Supreme Court on Thursday lamented the abject failure of successive governments in bringing in a law to ensure the independent functioning of the Election Commission of India (ECI).

A bench comprising justices Dipankar Datta and Satish Chandra Sharma termed Parliament's failure to enact a law governing the appointment of the chief election commissioner (CEC) and election commissioners (ECs), until directed to do so by the apex court in 2023, as the "tyranny of the elected".

The bench verbally asked advocate Prashant Bhushan, appearing for petitioner Association for Democratic Reforms (ADR) as to why Parliament did not make such a law before SC's 2023 ruling, which included the Chief Justice of India in the panel responsible for appointing ECs.


In response, Bhushan submitted that every government had taken advantage of the absence of such a law to undermine ECI's independence. "Because every government took advantage of it, so that they could misuse the appointment process. When people were in Opposition, they were clamouring that there should be an independent body, but when they came to power, they stopped bothering about it," Bhushan contended. To this, justice Datta verbally remarked: "I am reminded of a parliamentarian saying 'tyranny of the unelected'. This should be equated with the tyranny of the elected." Weighing in, justice Sharma added, "Tyranny of the majority."

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Justice Datta added that whoever comes to power "is doing the same thing". "It is most unfortunate for the country. I saw a BBC video on Dr Ambedkar. Within three years of the Constitution, he said democracy was not working in this country," he added.

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The develment came during the resumed hearing of a clutch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The bench also orally remarked that it wished judges, too, were appointed with the same speed as ECs. "We can only say we wish this speed is maintained in the appointment of judges," justice Datta observed.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, allows appointment of the CEC and ECs by a selection committee comprising the PM, a Union minister, and the leader of Opposition in the Lok Sabha. The law was passed by Parliament in December 2023 and received Presidential assent on December 29, 2023. The petitioners argue that the law violates the SC's 2023 judgement because it excludes CJI from the appointment process for members of ECI.