Introduction:

In a significant legal development, Trinamool Congress Member of Parliament (MP) Mahua Moitra has approached the Supreme Court of India, seeking to intervene in petitions challenging the constitutionality of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. This Act has been a subject of contention since its enactment, primarily due to its provisions altering the selection process of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs).

Background:

The Chief Election Commissioner and Other Election Commissioners Act, 2023, was passed by the Indian Parliament in December 2023. This legislation redefined the composition of the selection committee responsible for appointing the CEC and ECs. Notably, it excluded the Chief Justice of India (CJI) from the panel, designating the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition (or the leader of the largest opposition party in the Lok Sabha) as its members. This move effectively overturned a prior Supreme Court judgment from March 2023, which had mandated the inclusion of the CJI in the selection committee to ensure the independence of the Election Commission.

Arguments Presented by Mahua Moitra:

MP Mahua Moitra’s intervention application raises several critical concerns regarding the Act:

• Constitutional Infirmities: Moitra contends that the Act undermines the independent functioning of the Election Commission, an institution pivotal for conducting free and fair elections. By removing the CJI from the selection panel, the Act allegedly compromises the Commission’s autonomy, allowing excessive executive influence.
• Executive Dominance in Selection Committee: The Act establishes a selection committee dominated by executive members—the Prime Minister and a Union Cabinet Minister—alongside the Leader of the Opposition. Moitra argues that this composition permits the executive branch to unduly influence the appointment of the CEC and ECs, contravening the principle of an impartial and independent Election Commission.
• Contravention of Article 324(2): Article 324(2) of the Indian Constitution stipulates that the appointment of the CEC and ECs shall be made by the President, subject to provisions of any law made by Parliament. Moitra asserts that the Act’s provisions contradict the legislative intent of this article, which was designed as a safeguard against potential executive overreach in electoral appointments.
• Lack of Parliamentary Oversight: The MP highlights procedural lapses during the Act’s passage. She notes that 141 Members of Parliament were suspended during the deliberations—97 from the Lok Sabha and 45 from the Rajya Sabha—thereby lacking comprehensive parliamentary scrutiny and debate on the Bill’s provisions.
• Erosion of Public Trust: Citing data from the CSDS-Lokniti pre-poll surveys, Moitra points to a decline in public trust towards the Election Commission. Trust levels reportedly fell from 51% in 2019 to 28% in 2024, indicating growing public scepticism about the Commission’s impartiality.

Recommendations Proposed:

To address these concerns and fortify the independence of the Election Commission, Moitra proposes the following models for the selection and appointment of the CEC and ECs:

• Inclusion of the CJI in the Selection Panel: Reinstating the Chief Justice of India into the selection committee, alongside the Prime Minister and the Leader of the Opposition, as previously directed by the Supreme Court in the Anoop Baranwal v. Union of India case.
• Bipartisan Selection Committee: Forming a panel comprising only the Prime Minister and the Leader of the Opposition (or the leader of the largest opposition party in the Lok Sabha). This structure aims to ensure that appointments are made through consensus, reducing potential biases and preventing lobbying of judicial figures.
• Parliamentary Approval of Appointments: Mandating that the names recommended by the selection panel receive approval by a two-thirds majority in Parliament. This measure seeks to enhance legislative oversight and ensure bipartisan support for appointees.

Counterarguments:

Proponents of the Act argue that the new selection committee composition streamlines the appointment process and reflects the democratic mandate, as it includes representatives from both the ruling party and the opposition. They contend that the inclusion of a Union Cabinet Minister provides additional governmental insight, potentially leading to more informed appointments. Furthermore, supporters assert that the Act aligns with the constitutional provision allowing Parliament to legislate on the appointment process, thereby exercising its legislative prerogative.

Court’s Deliberation:

The Supreme Court, upon receiving Moitra’s intervention application, has acknowledged the gravity of the issues raised. The Court has consolidated her application with existing petitions challenging the Act’s constitutionality. A bench comprising Justices Sanjiv Khanna (now Chief Justice of India) and Dipankar Datta is set to deliberate on the matter. The Court has identified two primary aspects for consideration: the constitutional validity of the Act itself and the procedural integrity of its enactment.

Conclusion:

The challenge to the Chief Election Commissioner and Other Election Commissioners Act, 2023, spearheaded by MP Mahua Moitra, underscores the ongoing debate over the independence of India’s electoral institutions. As the Supreme Court prepares to examine the Act’s constitutionality, the outcome will have profound implications for the future of electoral governance in the country.