"... Even while selecting his Cabinet, should PM Modi consult some former judge ?," Solicitor General Tushar Mehta throws googly before Supreme Court

Questioning the argument for including the Chief Justice in the panel to appoint Chief Election Commissioner, Solicitor General Tushar Mehta said ...

if the Prime Minister's decision could not be trusted, then by the same logic, "even while selecting his Cabinet he must consult some former judge or outsider."

Solicitor General Mehta argued that the 2023 judgment merely directed an interim arrangement and did not lay down a binding constitutional requirement that the Chief Justice must be part of the selection committee.

He submitted that the petitions raise several constitutional questions, including whether Parliament's law under Article 324 can be invalidated merely because it does not include an "outsider" such as the Chief Justice in the selection committee.

He also wondered whether Parliament's legislative power is subject to implied constitutional limitations and whether courts can presume bad faith on the part of constitutional authorities while examining legislation.

Mehta 

Attorney General R Venkataramani argued that the earlier constitution bench judgment directing that the selection committee should comprise the PM, the Leader of the Opposition and the Chief Justice itself raises constitutional issues that require authoritative determination by a larger bench.

According to the government, if the 2023 Supreme Court verdict were treated as occupying the entire field, Parliament would effectively have no authority to legislate on the issue.  

The government urged the Supreme Court to refer the matter to a constitution bench, arguing that the petitions involve substantial questions relating to the interpretation of Article 324 of the Constitution -- which deals with the appointment of Election Commissioners -- and Parliament's legislative powers on the matter. 

The 2023 Act or the new law replaced the Chief Justice of India with a Union Cabinet Minister on the selection committee, giving the ruling government a two-thirds majority in the appointment process.  

"The office of the Prime Minister has a sanctity attached to it," Solicitor General Tushar Mehta told the court. 

He added, "If his decision is not to be trusted, then why not have a provision that even while selecting his Cabinet he must consult some former judge or outsider?"

The submissions were made before a bench of Justice Dipankar Datta and Justice Satish Chandra Sharma, which reserved its order on 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.

The government has strongly defended the current appointment process for the Chief Election Commissioner (CEC) and other Election Commissioners by a three-member committee comprising the Prime Minister, a Union Minister and the Leader of the Opposition.

It told the Supreme Court that there was "no reason to doubt" the PM's role in the selection process.

The government argued that constitutional courts cannot proceed on the assumption that the executive would act against democratic values. 

It further added that questioning the selection committee would amount to doubting both Parliament's legislative wisdom and the constitutional trust reposed in elected institutions.

ends