New Delhi: The Supreme Court on Thursday questioned if it could direct the parliament to enact a law mandating the inclusion of the Chief Justice of India (CJI) in the selection panel for appointing Election Commissioners, LiveLaw reported.The question came up while a bench of Justice Dipankar Datta and Justice Satish Chandra Sharma was hearing a petition challenging the constitutional validity of the The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The 2023 Act replaced the CJI from the panel that selects the head of the election commission (EC) with a minister appointed by the prime minister.Earlier, the panel consisted of the prime minister, the leader of opposition and the CJI. This system flowed from a constitution bench ruling in Anoop Baranwal v. Union of India, which laid down the process for the selection of the Chief Election Commissioner (CEC) until parliament enacted a law to this end.The petitioners argued that the 2023 Act gave undue advantage to the executive and undermined the independence of the election commission.Senior Advocate Vijay Hansaria, appearing on behalf of one of the petitioners, clarified that the plea doesn’t argue for the inclusion of the CJI but that the panel shouldn’t be controlled by the ruling party. “The idea is that it should not be Prime Minister’s man. Under the impugned Act, if the Prime Minister suggests the appointment of X, there is no way out that anybody else can be appointed. The Constituent Assembly members expressed that it must be independent, impartial and it must not be under government of the day,” he said.Hansaria referred to the Constituent Assembly debates and statements made by B. R. Ambedkar and other members to argue that the EC was intended to function independently of the government.The senior advocate said that while the parliament could enact a law to down the selection procedure, it could not directly or indirectly overrule a judgment of a constitutional court, adding that allowing the executive to have the deciding vote in such appointments violates the principle laid down in the Anoop Baranwal judgement.“Just as for the Judiciary to retain independence it must be outside control of the executive in the matter of appointment of judges, the mode of appointment of Election Commissioner must be outside the control of the executive as there is conflict of interest between conduct of Election Commission and party in power. The ruling party has an inherent and direct interest in the outcome of the results of the election conducted by the Election Commission of India,” Hansaria said. What the court saidJustice Datta observed that elections should remain outside the control of the government, but questioned whether the Constituent Assembly debates required the appointment process itself to be insulated from executive influence. He also noted that the Supreme Court’s ruling in Anoop Baranwal had introduced an interim arrangement until parliament enacted a law.Hansaria argued that while parliament can form a law, it cannot create a framework that places exclusive control in the hands of the executive. He also referred to parliamentary debates on the 2023 Act and said that concerns had been raised about the prime minister and a union minister forming the majority in the selection committee.“All that we are looking for is an impartial appointment. We must have faith in the person,” Hansaria said.Senior Advocate Gopal Sankaranarayanan also argued that while the Anoop Baranwal judgment did not require the CJI to be necessarily included in the selection panel, the judgement held that the executive alone cannot control such appointments.The arguments will continue on Friday (May 8).