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Centre brings Bill to replace CJI in Collegium for appointment of CEC, ECs

By LAWSTREET NEWS NETWORK      11 August, 2023 10:43 PM      0 Comments
Centre brings Bill to replace CJI in Collegium for appointment of CEC, ECs

NEW DELHI: The Union government on Thursday introduced a contentious Bill in Rajya Sabha seeking to replace the Chief Justice of India with a Cabinet minister in the committee to select the Chief Election Commissioner and Election Commissioners.

The opposition parties cried hoarse over the move, apprehending that this would allow the ruling dispensation to push its choices without any trouble. The government countered them as the Supreme Court verdict was to bring a law on the issue.

A five-judge bench of the Supreme Court led by Justice K M Joseph (since retired ) had unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs). However, the top court had also said that this norm will continue to hold good till a law is made by the Parliament.

The Centre has apparently used this one sentence in the apex court judgement and brought a law with the view of overturning the effect of the court’s verdict on the appointment of the CEC and ECs. A Bill was listed to be introduced Thursday in the Rajya Sabha.

The apex court, in its verdict delivered on March 2, said, “We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India”.


The court had added, “This norm will continue to hold good till a law is made by the Parliament”.

According to the bill – ‘Appointment and term of chief election commissioner and other Election Commissioners’ – the three-member committee will consist of the Prime Minister as the Chairperson. The other two members will be the Leader of Opposition in the House of the People-Member and a Union Cabinet Minister to be nominated by the Prime Minister-Member.  

The apex court had delivered the judgment on a 2015 PIL challenging the constitutional validity of the practice of the Centre-appointed members of the Election Commission. A two-judge bench of the apex court in 2018, had referred the case to a larger bench since it required a close examination of Article 324 of the Constitution, which deals with the role of a CEC.

Reacting to the development, Supreme Court advocate Prashant Bhushan said, “This bill moved by the govt to negate the CB judgement of the SC mandating the appt of the ECs by a committee of the PM, LOP & CJI; &again seeking to control the appt of ECs will be unconstitutional, since the SC has emphasized that the appt of ECs must be indep of govt control”.  

The apex court, in its judgment, had said, “The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission”.

The Parliament has the power to nullify the court's verdict by addressing the concerns flagged in the judgement. Noting the presence of legislative vacuum, the apex court had said, “In order to fill the legislative vacuum, i.e. the absence of any law made by the Parliament for the appointment of members of the Election Commission and in the light of the views expressed in various reports of the Law Commission, Election Commission, etc., this Court is of the considered view that the instant case thus aptly calls for the exercise of the power of this Court under Article 142 to lay down guidelines to govern the process of selection and removal of Chief Election Commissioner and Election Commissioners, till the Legislature steps in”.



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