Mumbai: The appointment of India’s next Chief Election Commissioner (CEC) has sparked a fresh debate on the separation of powers between the executive and the judiciary, with Vice President Jagdeep Dhankhar’s remarks on Thursday evening adding fuel to the discourse.

About The Controversy

The controversy comes at a critical juncture as a selection committee led by Prime Minister Narendra Modi prepares to meet on Monday, February 17, to finalize the appointment of the new CEC, following the retirement of Rajiv Kumar on February 18. This meeting will be the first under the new  Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, which has raised concerns about the independence of the Election Commission.

The Act, passed in December 2023, replaced a temporary system established by a Supreme Court ruling in March 2023. The earlier system mandated a three-member selection panel comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI). However, the new law excludes the CJI from the panel, replacing the judiciary’s role with a Union Cabinet Minister.

Critics argue that this change undermines the independence of the Election Commission by giving the executive disproportionate control over the appointment process.

About Vice President Jagdeep Dhankar's Recent Comments

Vice President Dhankhar’s recent comments have added a new dimension to the debate. Speaking on the role of the judiciary in executive appointments, he questioned the involvement of the CJI in such processes. “How can in a country like ours or in any democracy, by statutory prescription, the Chief Justice of India participate in the selection of the CBI director? Can there be any legal rationale for it?” he asked.

Dhankhar emphasized that the involvement of the CJI in executive appointments is incompatible with democratic principles and called for a re-evaluation of such practices. His remarks have reignited discussions about the delicate balance of power between the executive and the judiciary.

The Supreme Court, meanwhile, has been examining the constitutional validity of the 2023 Act. A three-judge bench led by Justice Surya Kant recently highlighted that the legality of the Act hinges on whether it circumvents or dilutes the court’s authority under Article 141 of the Constitution, which mandates that the Supreme Court’s decisions are binding on all courts in India.

The bench’s observations suggest that the court is scrutinizing whether the new law undermines the judiciary’s role in safeguarding democratic institutions. The timing of these developments is significant. The selection committee meeting on Monday will be the first test of the new law. The committee, which includes Prime Minister Modi, Home Minister Amit Shah, and Leader of the Opposition Rahul Gandhi, will recommend a candidate from a shortlist prepared by a search committee.

The President will then appoint the new CEC based on the panel’s recommendation. Historically, the senior-most Election Commissioner would automatically assume the role of CEC.