Challenge To Election Commissioners' Law: Live Updates From Supreme Court
The Supreme Court is hearing the plea challenging law providing that selection panel for appointing Election Commissioners will consist of the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition.Bench: Justice Dipankar Datta and Justice Satish Chandra Sharma.The Court began hearing arguments in the case on 6th May, remarking that this issue is more important than any...
The Supreme Court is hearing the plea challenging law providing that selection panel for appointing Election Commissioners will consist of the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition.
Bench: Justice Dipankar Datta and Justice Satish Chandra Sharma.
The Court began hearing arguments in the case on 6th May, remarking that this issue is more important than any other.
The petitioners have contended that the present law ensures "Prime Minister's man" is appointed as Chief Election Commissioner undermining the independence of the Election Commission. During the course of arguments, the Court observed that the Anoop Baranwal judgment which provided for a committee of PM, LoP and CJI was only meant to fill a vacuum till the Parliament made a law, and didn't mandate a particular structure in such a law.
The Court also questioned the inclusion of a Cabinet Minister nominated by the PM in the selection panel under the impugned law, remarking that the third person apart from PM and LoP should be a neutral person.
Order: Judgemnt on the question as to whether the writ petition should be referred to a five judge bench is reserved. Written submissions may be filed by all the parties.
J Datta: Provide your written submissions.
Sankarnarayanan: let me address on the issues framed by the Solicitor General.
J Datta: you all have argued that it is a substantial question.
Sankarnarayanan: we do not accept that any of the questions have anything to do with the interpretation of the constitution.
Sankarnarayanan: the proviso to the article 145 says that if the court is hearing any appeal under any provisions of the constitution, not writ petitions, appeals...
J Datta: therefore this does not apply.
Sankarnarayanan: the point is that article 145 (1) subject to the provisions of any law made by the parliament. The Rules are therefore subject to that
J Datta: we are reserving judgement on the reference. You can provide your written arguments.
Senior Advocate Gopal Sankarnarayanan: we were under the impression that the Union was going to argue on merits. There is quite something to be said on this point of reference.
Bhushan: the question has been settled authoritatively. There is no question which can be referred to the constitution bench otherwise it would mean anytime a question of law arises in an Article 32 it will have to be referred which will make the whole system completely unworkable.
Bhushan: Rule 38 of the Supreme Court Rules is essentially reproducing article 145. It includes only such question of law which is not been decided.
The question as to whether the dominant power of selecting election commissioners can be with the government by any law has been settled not just an Anoop Baranwal but also in Central organisation of railway officers which said that even the power to select an arbitration panel if it is given to one of the parties it cannot be allowed. Same in the Madras Bar Association judgement
J Datta: why would the court write so many paragraphs and not say that this is the way the law has to be?
Farasat: the court has said that the law has to be non executive dominance. How that is reached is up to the parliament. There can be N number of solutions to this. On the petitioners 'side we have given 3 or 4 suggestions
Farasat: Non executive dominance in The selection panel for the CEC and ECs was held to be a constitutional mandate as part of article 324. There can be executive presence but not executive dominance.
J Datta: if the constitution bench intended that on the basis of reasoning provided here then why did it stop at saying that?
Farasat: the court can never say that a law has to be of a particular type.
J Datta: What is the finding on the prayers?
Farasat: it said that non executive dominance is a requirement of article 324 for a selection committee. That is part of the ratio of Anoop Baranwal. The direction of inclusion of CJI as one of the members was the relief granted till the parliament makes a law
J Datta: Why did the Anoop Baranwal go to a larger bench?
Farasat: the two judge bench opined that the matter would require interpretation of article 324 of the Constitution of India for an authoritative pronouncement.