⚠️🚨PRASHANT BHUSHAN’S ARGUMENTS AGAINST EXECUTIVE DOMINANCE IN APPOINTMENT OF ELECTION COMMISSIONERS

Added: 2026-05-07

[00:00:00]The constitution of the searchcom selection committees as stipulated in the schedule of the rules cannot pass constitutional master under a system governed by the rule of law which accords primacy to the independence of the judiciary. Independence of the judiciary require that judicial functioning be free from interference by other two organs. Central government is the largest litigant before the tribunals constituted under various statutes. The independent functioning of the tribunal stands compromised where the executive has the controlling authority in selection of members of the tribunals. The executive is often a litigant before and has the has an interest in the disputes which are adjudicated by the tribunals. The constitution of the such come selection committee violates the principle of judicial independence and directions issued by the court and madras bar association and madras bar. This actually matter came up to the court many times again and again similar actually like this matter because now my fear is even if your lordship strike it down they may bring it back in another avatar your lordship will strike down this one they will bring the same dominance of the executive in another avatar saying prime minister speaker, chairman of the Raj Sabha and leader of opposition. Suppose they bring that again my lord there will be executive dominance because essentially the speaker and the chairman of the Raj Sabha are also appointed by the executive virtually. So same thing was happening again and again they were making rules even despite your lordship's judgments about appointment of members of the tribunals etc. And then again and again this court had to repeatedly strike them down in Madrasbar Association 1, Madrasbar Association 2, Roger Matthew where a constitution benched did that. Thereafter the then we have said that the central government to whom rulemaking authority was conferred by section 184 has not observed the principles which were uh enunciated in Madras bar association and bar association either in letter or in spirit. The dangers inherent in conferring such an unguided power on the executive to frame rules governing the selection, appointment and conditions of service of members of tribunals is evident from the rules which have been framed. The rules disregard binding principles enunciated in decisions of this court. The rules are destructive of judicial independence and are unconstitutional. And then again me lord we have said that thereafter the executives sought to overcome the judgments by introducing new rules which were again struck down by this court. So uh this is a principle which lord in has been reiterated in a very large number of cases. These are all constitutionb judgments. I'm only reading constitution and judgment where they have said that look where you have a body which has a judicial or a quasi judicial role then you cannot have the appointments of that body of members of that body being controlled or dominantly controlled by the executive or in in fact in NJC they said even significantly influenced by the executive then that will destroy the independence of that body because the government is a major litigant just as me the government or the political party in power is a major uh major stakeholder before the election commission. Then me para page 22 the election commission parah 13 entrusted with the constitutional responsibility of conducting free and fair elections occupies a p position no less vital in a democratic framework. The commission exercises vast constitutional powers, performs adjudicatory and quasi judicial functions and is rout routinely called upon to decide issues directly affecting the political for fortunes of the ruling dispensation itself. In such circumstances, any appointment mechanism which confers exclusive or overwhelming control upon the executive gravely compromises both the actual independence of the commission and the perception of its neutrality in institutions discharging constitutional adjudicatory and supervisory functions. Legitimate legitimacy rests not merely upon actual independence but equally upon the public perception of institutional neutrality.

[00:04:39]Even a reasonable apprehension that appointments are controlled by the political executive is sufficient to erode public confidence in the impartiality of the election commission.

[00:04:50]Constitutional democracy requires that not only elections be free and fair but they must manifestly appear to be so.

[00:04:57]And then me lord uh para 16 the impuged section 7 creates a selection committee structurally dominated by the political executive consisting of the prime minister and a union cabinet minister nominated by the prime minister. The consequence of such composition is that the ruling dispensation effectively acquires decisive control over appointments of the EC. This creates a manifest danger of institutional bias as the party which is itself the principal stakeholder in electoral contest is empowered to determine the composition of the constitutional authority charged with supervising those very elections. This court has consistently held that where one party to a dispute or process retains unilateral or dominant control over the constitution of an adjudicatory body, the resulting mechanism becomes constitutionally suspect violating the principles of equality, fairness and institutional impartiality under article 14. Then me then came this case central organization for railway electrification which was regarding u uh arbitration and again this is a constitution bench judgment I'll only read a few paragraphs if your lordship turns to page 24 parah 75 at the bottom independence and impartiality of arbitral proceedings ings and equality of parties are conccommatant principles. The independence and impartiality of arbitral proceedings can be effectively enforced only if the parties can participate equally at all stages of an arbitral process. Therefore, the principle of equal treatment of parties applies at all stages of arbitral proceedings including the stage of appointment of arbitrators. Then par 88 the principle governing the doctrine of bias is that a member of a judicial body with a predisposition in favor of or against any party to a dispute or whose position in relation to the subject matter or a disputing party is such that a lack of impartiality would be assumed to exist should not be part of the tribunal composed to decide the dispute.

[00:07:17]This principle is applicable to authorities who have to act judicially in deciding rights and liabilities and bodies discharging quasi judicial functions. A quasi judicial authority empowered to decide a dispute between opposing parties must be one without bias towards one side or the other in the dispute. A member of a tribunal which is called upon to try proceed try issues in judicial or quasi judicial proceedings must act impartiality objectively and without bias. And then they say lord at par 128 the highlighted portion the underlined portion a party may select a particular person to be appointed as a sole arbitrator because of a quid proquo arrangement between them. Moreover, the fact that the sole arbitrator owes the appointment to one party may make it difficult to decide against the party for fear of displeasure. It is not possible to determine whether the sole arbitrator will be prejudiced. But the circumstances of appointment give rise to the real possibility of bias and certainly me to a reasonable apprehension of bias.

[00:08:28]Equal treatment of parties at the stage of appointment of arbitrator ensures impartiality during the arbitral proceedings. A clause that allows one party to unilaterally appoint a sole arbitrator is exclusive and hinders equal participation of the other party in the appointment process of arbitrators. Further, arbitration is a quasi judicial and adjudicatory process where both parties ought to be treated equally and given an equal opportunity to persuade the decision maker of the merits of the case. An arbitral process where one party or its proxy has the power to unilaterally decide who will adjudicate on a dispute is fundamentally contrary to the adjudicatory function of arbitral tribunals.

[00:09:11]And then we in the next paragraph after about eight lines. However, the problem arises when the PSUs make it mandatory for other parties to select the nominees from a curated panel of arbitrators.

[00:09:27]Here both things are happening. Not merely the curation is being done by the law minister and couple of secretaries but the selection is also being done by the government.

[00:09:40]When a PSU exercises its discretion to curate a panel, the very factor that the PSU is choosing uh only a certain number of persons as potential arbitrators and not others will raise a reasonable doubt in the mind of a fair-minded person. The PSUs may conceivably have nominated a person on the panel of potential arbitrators because they have a certain predisposition in favor of the former.

[00:10:05]This doubt is reinforced when the other party is given no choice but to select its arbitrator from the curated panel.

[00:10:12]The possibility of bias is real in situations where arbitration clause allows a government company to unilaterally appoint a sole arbitrator or control the majority of the arbitrators. Since the government has control over the arbitral tribunal, it can chart the course of the arbitration proceedings to the prejudice of the other party. resultantly unilateral appointment clauses fail to provide an effective substitute for judicial proceedings in India. Further a unilateral appointment clause is inherently exclusionary and violates the principle of equal treatment of the parties and therefore lord they lay down the following uh this is the decision at page 28.

[00:10:52]In view of the above discussion, we conclude that the principle of equal treatment of parties applies at all stages of arbitral proceedings, including the stage of appointment of arbitrators. The arbitration act does not prohibit PSUs from impaneling potential arbitrators. However, an arbitration clause cannot mandate the other party to select its arbitrator from the panels curated by the PSUs. A clause that allows one party to unilaterally appoint a sole arbitrator gives rise to justifiable doubts as to the independence and impartiality of the arbitrator. Further, such an unilateral clause is exclusionary and hinders equal participation of the other party in the appointment of the arbitrators. In the appointment of a three-member panel, mandating the other party to select its arbitrator from a curated panel of potential arbitrators is against the principle of equal treatment of parties.

[00:11:45]In this situation, there is no effective counterbalance because parties do not participate equally in the process of appointing arbitrators. The process of appointing arbitrators is unequal and prejudiced in favor of one party. And then they say unilateral appointment of arbitrators uh unilateral appointment clauses and public private contracts are violative of article 14 of the constitution.

[00:12:10]So therefore my lord irrespective of uh even if even if my lord the pure lordships had not delivered that ano baranwal judgment even if the anu baranwal judgment was not there and if we had come to court a fresh dooo to challenge this uh particular act uh clause 7 of this act in my respectful submission me the same arguments would apply which persuaded did the court in Anu Paranal's case which persuaded and which have persuaded me four other constitution bench judgments uh of this court in other cases involving either selections to the judiciary or selections to tribunals or selections of arbitrators and then my lord u I just want to read uh the last uh page 32 Two, this is my submission. It is submitted that though by way of the impuged section, the vacuum under 3242 of the constitution has been filled. However, the impuged section does not alter the second basis that is appointment of members of the uh election commission should not be in the exclusive hands of the executive. The impuged section restores the earlier position in law.

[00:13:37]Appointment of the chief election commissioner and election commissioners would be done solely by the executive.

[00:13:42]This is because the selection committee is xi dominated and controlled by members of the executive that is the prime minister, union, cabinet minister etc. In such circumstances, the legislature by the impuged section has not removed the defect which the court had found in the previous law and as such the impuged provision is liable to be struck down by this court. As I said my lord, even if this court had not delivered that anu baranwal, the same argument would apply. It is respectfully submitted that this court in Anubaranwal while expressly observing that its directions would operate until a law is made by parliament did not leave the field open to unfettered legislative even if it is assumed that it was left to unfettered legislative discretion. As I said the same arguments will apply.

[00:14:30]The same arguments which persuaded the court to issue those directions mandating to fill up uh in the inter in the intergenum a committee of prime minister, leader of opposition and the chief justice. They said that the arguments which persuaded the court and which they said stated in their judgment were that look if you leave this election to in the hands of the executive it creates uh bias of the election commission which is performing many firstly it has enormous power.

[00:15:02]Secondly, it is performing many quasi judicial uh functions and and clearly the government or the ruling party is a very important the most important player in all that and therefore the it will uh uh run contrary to that. So therefore my lord it is respectfully submitted that this court in anuparanal while expressly observing that its directions would operate until a law is made by parliament did not leave the field to unfettered legislative discretion. The constitution bench in deference to separation of powers issued interim directions upon recognizing a constitutional vacuum but simultaneously laid down as a binding constitutional principle under 141 that the election commission cannot be placed under the exclusive or dominant control of actually I should have said that the selection of the election commission cannot be placed. uh the holding this holding rests on the foundational principle that executive dominance in appointments to the election commission imper imperils free and fair elections which form part of the basic structure.

[00:16:12]Therefore, while parliament could fill the vacuum, it could not reintroduce the very defect identified. And it's not just a defect identified. It's a defect which is founded on a fun on several fundamental principles that is free and fair elections, democracy, rule of law, article 14. All those were foundational principles on which the court's judgment was founded.

[00:16:36]So it's not merely a defect which they pointed out but the defect was on the basis of so many principles of the constitution.

[00:16:46]uh the impuged provision by restoring executive dominance substantially defeats the ratio of Anub Baral. So I'm not just basing my arguments on Anub Baral. I'm saying that uh dehorse Anuanal even otherwise all those principles which the courts have enunciated with the constitution benches of this courts have initiated of this court has initiated has uh enunciated in so many so many judgments scor one that scor 2 that is NJAC then this Roger Matthew then that central railway organizations on arbitration tribunal exactly all those princip principles apply squarely to this to the facts of this case and therefore my lord in my respectful submission this needs to be struck down and as I said my lord my fear is >> we can't do >> no your lordship can do something can do can do can do >> so your lordship can now go one step further so one step one step further I'm not saying that your lordship should prescribe exactly what should be the uh what should be the law made by I'm not saying that what but what what I am saying is that your lordship can say that whatever body they make cannot have people whose appointment in turn if they have people whose appointment in turn depends upon the executive that will reiterate the same principle. So for example the speaker the vice president their appointment is squarely in the hands of the executive. So therefore that your lordship can and in my respectful submission should say because otherwise we are back to we keep coming back to square one and that's what happened in that madras bar association case also where this court repeatedly gave directions they repeatedly came back uh with uh the same or similar rules etc. So therefore in order to avoid that your in in my respectful submission your lordship should