'Tyranny of the Elected': SC Observation While Hearing Challenge to Law on Election Commission Appointments
New Delhi: A decade ago, Union Finance Minister late Arun Jaitley blasted the Supreme Court for striking down the National Judicial Appointments Bill, calling it the "tyranny of the unelected". On Thursday (May 7), a Supreme Court bench reportedly used the same phrase to lambast the Union government over how it appoints election commissioners and the Chief Election Commissioner (CEC).
"I am reminded of a parliamentarian saying tyranny of the unelected. This should be equated with tyranny of the elected," said justice Dipankar Datta, on the second day of hearing petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, or CEC Act, The Print reported.
Justice Sharma added, "Tyranny of the majority," NDTV reported. It also reported an observation by Justice Datta that "Whoever comes to power is doing the same thing. It is most unfortunate for the country."
The judge also referred to a BBC video on the first law minister, Dr B.R. Ambedkar, saying he had expressed concerns about democracy in India.
On the first day of the hearings, the Union government sought an adjournment, which the court denied.
The bench of justices Datta and S.C. Sharma observed that successive Union governments failed to pass a law to appoint election commissioners (including the Chief Election Commissioner) until the court stepped in with a "stopgap arrangement".
That arrangement, which lasted until the CEC Act cleared parliament in a special session in 2023, was the Supreme Court's Anoop Baranwal vs Union of India judgement. Before this judgement, a 1991 law related to appointments and terms of service of election commissioners was in force.
The Baranwal ruling was passed in March 2023, and the Modi government's CEC Act was passed in December that year.
“Why did Parliament not make a law before Baranwal?” the bench asked advocate Prashant Bhushan, appearing for one of the petitioners in the case, Association for Democratic Reforms (ADR), as per a report in Bar and Bench.
"Because every government took advantage of it so that they could misuse the appointment process," said Bhushan in response. "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," he said.
The 2023 law is being challenged by ADR and activist Jaya Thakur, whose petitions claim that it overturned the Barnwal ruling in significant ways that undermine the independent functioning of the judiciary.
One of the key stipulations in Baranwal – a ruling by a five-judge bench – that the CEC Act did not include is for a committee comprising the prime minister, leader of opposition in Lok Sabha and the chief justice of India to pick election commissioners (and the CEC).
Instead of the CJI, the CEC Act made room for a Cabinet minister, effectively tilting the scales of appointments to the election commission in favour of the Union government.
"There are many problems," Bhusan said, adding, "This court took great pains to set things right. When in opposition they are talking about it, when they came to power they forgot about it," NDTV reported. “The requirement of independent Election Commissioners is premised on free and fair elections,” Bhushan submitted, as per NDTV.
The bench asked Bhushan whether there was "any [specific] observation in the Baranwal judgment that when Parliament frames the law, our observations must be kept in mind? They could have said so. The CJI being in the committee was operational only when there was a vacuum…"
To this, Senior Advocate Vijay Hansaria, appearing for one of the petitioners, told the bench that the ruling's composition of an independent selection committee was based on constitutional norms. "Baranwal doesn’t just speak about composition. It said this is what the constitutional requirement is," Hansaria said.
In March 2023, the Supreme Court declared that the appointment of CECs and election commissioners should not be done solely by the political executive. The court noted that the ECI should be independent of executive control and mandated a selection process for until parliament makes a law, as a legislative brief by PRS Legislative Research explained.
The court also directed that the appointment should be done by the President on the recommendation of a Selection Committee. The Selection Committee will consist of the Prime Minister, the Leader of Opposition in Lok Sabha, and the Chief Justice of India.
Hansaria alleged the government selected two new election commissioners on March 14, 2024, a day before the Supreme Court was to hear a plea for a stay on such appointments.
The court only remarked that it wished judges' appointments were expedited as the CEC's appointments were.
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