New Delhi: The Centre on Thursday defended the law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners, telling the Supreme Court that it would be incorrect to presume the Prime Minister and Union ministers would act in "bad faith" or against "democracy" simply because they hold a numerical majority in the selection committee.

Appearing for the Centre, Solicitor General Tushar Mehta argued that the office of the Prime Minister carries constitutional sanctity and that questioning the selection committee's decisions would undermine the trust reposed in democratically elected institutions.

Centre opposes challenge to 2023 law

The Supreme Court was hearing a batch of petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which removed the Chief Justice of India (CJI) from the selection panel responsible for appointing Election Commissioners.

Mehta urged the court to refer the matter to a larger Constitution Bench under Article 145(3), saying the case raises substantial constitutional questions requiring authoritative interpretation.

"If his decision is not to be trusted and is to be seen as necessarily a bad-faith exercise, then why not have a provision that even while selecting his Cabinet, he must consult some former judge or outsider?" Mehta told a bench of Justices Dipankar Datta and Satish Chandra Sharma.

He argued that questioning the adequacy of the selection committee amounted to doubting Parliament's wisdom and the constitutional trust vested in elected institutions.

"When the executive wants to participate in the selection of another organ, it becomes a question of independence of another organ. Can it be said to the judiciary then that we will not trust your appointments because there is no outsider? This is not adversarial. I am just saying this as a student of law," Mehta said.

During the hearing, Justice Datta remarked, "As you said judges select judges, we wonder whether judges select judges nowadays."

Mehta further submitted that the executive and legislature remain the only branches directly accountable to the people.

Bench raises concerns over fairness

Responding to the Centre's arguments, the bench referred to Dr B R Ambedkar's observations and the criminal backgrounds of several lawmakers and ministers.

"One-and-a-half years before his death, Dr Ambedkar said democracy failed in India. These are all utopian ideas... Dr Ambedkar passed away in 1955-56... Just give us the figures in how many states there are ministers who have cases," the bench observed.

Justice Datta clarified that the issue was not about distrusting the Prime Minister but ensuring fairness in the appointment process.

"We would trust the Prime Minister. But this has not happened over the years. I rest at that. Now it's 2:1. Two on the side of the PM and one on the side of the opposition."

"The election commissioner is supposed to be an independent person. Should the committee not have any show of fairness? We are not saying fairness is not being achieved. But it has to be shown," Justice Datta said.

Attorney General R Venkataramani also argued that the constitutional questions arising from the Supreme Court's 2023 Anoop Baranwal judgment warranted consideration by a larger bench.

After hearing all sides, the apex court reserved its verdict on whether the petitions challenging the 2023 law should be referred to a five-judge Constitution Bench.

The petitions, filed by Congress leader Jaya Thakur, the Association for Democratic Reforms (ADR) and others, contend that excluding the CJI from the selection panel compromises the independence of the Election Commission.

Under the 2023 law, the selection committee comprises the Prime Minister, a Union minister nominated by the Prime Minister, and the Leader of Opposition (LoP), or the leader of the largest opposition party in the Lok Sabha.

The law was enacted in December 2023, months after a Constitution Bench directed that Election Commissioners should be appointed by a committee consisting of the Prime Minister, the LoP and the CJI.

The Centre has maintained that the independence of the Election Commission does not depend on the presence of a judicial member in the selection committee and has defended appointments made under the 2023 law.