SC questions Centre on CJI's exclusion from CEC selection panel, flags ‘executive veto’

The Supreme Court on Thursday (May 14) asked sharp questions to the Centre regarding the composition of the panel for the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners. Pointing out that the Chief Justice of India (CJI) is part of the panel that appoints the Director of the Central Bureau of Investigation (CBI), the top court asked why the CJI is not a member of the panel that appoints the CEC and other election commissioners.

Questions on panel structure

The questions were asked by Justice Dipankar Datta during the hearing of a case regarding the appointment process of the CEC and other Election Commissioners. He asked if the Prime Minister selects one candidate for the CEC’s post and the Leader of the Opposition picks another candidate, then will the third member of the panel- a Cabinet minister- support the Leader of the Opposition’s choice.

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"I was wondering. For a CBI director, CJI is there. We can say for maintenance of law and order. Or you can stretch it to rule of law also. But not for maintaining democracy? Not for ensuring pure elections?" said Justice Datta.

Call for independent member

"We don't say CJI should be there. But why shouldn't there be an independent member? Why should it be from the ministry? Let us be very clear. Today Prime Minister picks one. And Leader of the Opposition (LoP) picks another one. There is disagreement. The third member will go towards the LoP?" he added as quoted by NDTV.

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Attorney General R Venkataramani responded, saying that he was unwilling to make a guess on such a matter.

"May not be in all practicality. I don't want to second guess that," he said. At this juncture Justice Datta sharply responded saying "Then it is the executive who is controlling everything.”

‘Executive veto’ concern

Elaborating further, Justice Datta said that the seeming presence of an “executive veto” is a cause of concern for them.

"What troubles us prima facie is why is there an executive veto? After all these precedents was the parliament not aware of these cases? Parliament has the power to frame the laws. But the Supreme Court is the final arbiter. It will have the power to interpret the laws whether you like it or not," he added.

Bench flags 2:1 majority

The bench observed that the current structure of the selection panel for the CEC and other Election Commissioners is such decisions would be passed by 2:1 majority.

“Why this show off of independence in appointment of election commissioner,” stated the bench as quoted by the Times of India.