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The government also pointed out it is critical to note that prior to the enactment from 1950 till 2023- for 73 years, the appointment of the Election Commissioners was being made by the Executive exclusively, which belies all claims of partiality
The Union government has on March 20, 2024 stated before the Supreme Court the independence of the Election Commission, or any other organisation or authority, does not arise from and is not attributable to the presence of a judicial member in the Selection Committee.
Equally, the presence of senior government functionaries on the Selection Committee cannot in and of itself be a ground to automatically assume bias on behalf of the Committee, it said.
"It should be kept in mind that EC have been able to function neutrally and effectively even during the era of full executive discretion in appointment," it said.
In an affidavit, Law and Justice Ministry submitted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is a significant improvement on the existing status quo and provides a far more democratic, collaborative and inclusive exercise for Election Commissioners in line with Supreme Court's Constitution bench Anoop Baranwal judgment (2023).
The government also submitted that the high constitutional functionaries like EC ought to be presumed to act fairly and in good faith in the public interest.
"To indicate, as the petitioners suggest, that Selection Committees without judicial members, would invariably be biased is wholly incorrect," the reply said.
On March 14, retired IAS officers Gyanesh Kumar and Sukhbir Singh Sandhu were appointed as Election Commissioners by a panel of Prime Minister, Union Law Minister and Leader of Opposition in Lok Sabha.
On March 2, 2023, the SC ruled that the appointment of CEC and ECs would be made by the President on advice of a panel, comprising Prime Minister, Leader of Opposition and Chief Justice of India, until a law is put in place in this regard.
The law enacted in December, 2023 replaced the CJI with a Union Minister in the Selection Committee.
Hearing the batch of petitions challenging the new law on appointment to the posts of Chief Election Commissioner and the Election Commissioners a Justice Sanjiv Khanna led bench had said, "We do not stay legislations by way of interim orders..".
Cause Title: Association for Democratic Reforms vs. Union of India
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