New Delhi: Raising questions over the appointment process of the Chief Election Commissioner/Election Commissioners, where a panel of the Prime Minister, a Cabinet Minister and the Leader of the Opposition selects the candidate. Supreme Court Thursday said the current system allows the government to appoint a person of its choice as long as two out of three members are in favor of it and asked the government why it is “pretending about independence” in the appointment process. It was said that instead of the minister, an independent person should be made a part of the panel.Citing the Supreme Court’s earlier direction that the panel should include the PM, CJI and the LOP, a bench of Justices Dipankar Gupta and Satish Chandra Sharma said it was not necessary that the CJI participate in the process, but an independent person would have to be a part of it or the presence of the LOP would become merely decorative. It said that when a CBI Director is appointed by an independent panel comprising the PM, CJI and LOP, why should not the same practice be followed for the CEC/EC, which is all the more important as the institution is involved in maintaining democracy and ensuring free and fair elections in the country.Although Attorney General K Venkataramani said that the neutrality and independence of the CEC/EC arises from their functioning after their appointment, the bench said that it started with the appointment process itself. The court said that the Election Commission should not only act neutrally but also appear neutral.“Why should a cabinet minister be a part of this? Let’s assume the ruling party has 300 MPs. The PM picks 25 of his best. Now you micromanage it again and bring in one of the 25. Why? Then why do you include the leader of the opposition in it? He is decorative. A minister will never go against the PM. It will always be decided by 2:1. Why this show of independence in the body?”The court is probing the validity of the law – the CEC and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act – which was enacted after the apex court passed orders that appointments would be made by a panel of the PM, CJI and the LOP to bring independence in the process. Several petitions were filed, including by MP Congress functionary Jaya Thakur, alleging that the new law amounts to abrogation of the Supreme Court order and paves the way for the government to appoint people from its “neighborhood” to this important post.Deliberations on the search, selection and appointment of Gyanesh Kumar (now CEC) and SS Sandhu as election commissioners in 2024 came under question, with the petitioner alleging it was done in haste just a day before a crucial apex court hearing, with the bench asking the Center to produce the original records before it. Kumar appointed election commissioner Election Commission of India on March 15, 2024, after his retirement on January 31.The court further explained that it is the executive government which is in a position of control in taking decisions on appointments to the election panel. It said the CJI is part of the panel to appoint the CBI director who also works to maintain law and order and maintain the rule of law. The court said that the role of the Election Commission is more important than that of the CBI as it is involved in maintaining democracy. “We do not say that the CJI should be there. But why not have an independent member? Why should it be from the ministry? Let us be very clear. Today the Prime Minister chooses a name. And LoP chooses the second one. There is disagreement. Then whose side will the third member take?” the bench said.Arguing that the court should refrain from venturing into legislative territory while deciding the validity of a law, the AG said there has never been any allegation on the CEC/EC of compromising and joining hands with the government. He said the country has never seen such a devastating or tragic experience when an Election Commissioner has failed to advance the rule of law and there is no reason to doubt the existing system.