Discussion: Will SC stall new CEC's appointment?

In the latest episode of Capital Beat, activist Anjali Bharadwaj delved into the contentious Chief Election Commissioner and Other Election Commissioners Act, 2023, which has sparked legal challenges. The Supreme Court is set to hear petitions questioning the constitutionality of the law on February 4, with the hearing taking place just two weeks before Chief Election Commissioner Rajiv Kumar’s retirement.

The discussion explored the implications of the legislation, which removed the Chief Justice of India from the selection panel for Election Commissioners, replacing them with a Union Minister. This change, Anjali argues, compromises the independence of the Election Commission, which is central to India’s democratic framework.

Constitutional Concerns

“The Election Commission must function independently to ensure free and fair elections,” Anjali stated. She emphasized the constitutional mandate requiring Election Commissioners to remain unbiased and autonomous, shielding the electoral process from political influence.

Historically, the executive appointed Election Commissioners, a system that persisted due to the absence of a specific law, despite the Constitution’s directive to create one. While this arrangement functioned without major issues in the past, recent elections have raised doubts about the impartiality of the Election Commission.

“Recent elections, especially in 2019 and 2024, saw numerous allegations of selective action by the Election Commission, undermining public trust,” Anjali added.

Supreme Court’s Interim Judgment

In the Anoop Baranwal case, the Supreme Court had intervened, instituting a three-member selection panel comprising the Prime Minister, Leader of Opposition, and the Chief Justice of India. However, the Centre swiftly enacted a law that replaced the Chief Justice with a Union Minister, effectively granting the ruling party a majority in the selection panel.

“This change violates the Supreme Court judgment in both letter and spirit,” Anjali argued. “The court had stressed that the selection process must not have a preponderance of the ruling party’s influence.”

Public Trust and Electoral Integrity

Anjali expressed grave concerns about the erosion of public trust in the electoral process. “If citizens lose faith in election results, democracy itself is at risk,” she warned. She cited instances where discrepancies in voter turnout figures and selective enforcement of electoral rules raised serious questions about the Election Commission’s integrity.

“Transparency is essential,” she said. “If the Election Commission has nothing to hide, it should proactively share data, such as voter turnout details, to allay public concerns.”

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What Lies Ahead?

The upcoming Supreme Court hearing will be a critical test for judicial intervention in upholding democratic principles. Anjali called for the court to strike down provisions of the 2023 Act that tilt the selection process in favor of the ruling party.

She emphasized the need for a balanced selection panel, similar to the mechanism used for appointing the Lokpal, which ensured no single party could dominate the process. “It’s not about bringing back the Chief Justice but ensuring the selection committee does not have a majority from any one political party,” she clarified.

Urgency for Action

As the retirement of Chief Election Commissioner Rajiv Kumar looms, the Supreme Court faces a time-sensitive decision. Anjali expressed hope that the court would act expeditiously to prevent further erosion of trust in the Election Commission.

“The appointment of Election Commissioners must be free from political bias,” she concluded. “The Supreme Court has a responsibility to safeguard democracy by ensuring that the referee of our elections—the Election Commission—remains independent and trustworthy.”

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