As India braces itself for the upcoming general elections, the Supreme Court has made a significant decision regarding the appointment of Election Commissioners, refusing to issue a stay on the law governing their appointment. The apex court’s verdict, delivered on Thursday, March 21, comes in response to applications seeking a halt on the implementation of the law.
During the proceedings, a bench comprising Justices Sanjiv Khanna and Dipankar Datta emphasised that halting the legislation at this stage could lead to chaos and uncertainty, given the proximity of the elections. The bench addressed the arguments put forth by Prashant Bhushan, representing the petitioners, who highlighted concerns regarding the dominance of the executive in the appointment process. Bhushan stressed that the constituent assembly had envisioned an independent panel, not one controlled by the executive.
In announcing the decision, the bench underscored the independence of the Election Commission, stating, “You cannot say that the Election Commission is under the thumb of the executive.” The court’s refusal to stay the legislation signifies its reluctance to disrupt the electoral process, particularly when elections are imminent.
Notably, the bench also observed that there were no allegations against the recently appointed Election Commissioners, Gyanesh Kumar and Sukhbir Singh Sandhu, who were selected under the new law by the selection panel.
The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Bill, 2023, was passed by Parliament last year and subsequently received the President’s assent. The legislation introduced significant changes to the appointment process, replacing the Chief Justice of India on the committee responsible for selecting election commissioners with a Union Cabinet minister. As per the amended law, the committee now comprises the Prime Minister, a Union Cabinet minister, and the Leader of the Opposition.
The apex court, however, clarified that it is not questioning the credentials of the Election Commissioners selected, but on the procedure in which the selection was made.Solicitor General Tushar Mehta, appearing for the Centre, told the bench that the process had started in February, immediately after the Act came into force.
To this end, the bench remarked that there were two aspects in the present case, one being whether the Act itself was constitutional and the other being the procedure adopted and added that there could have been an opportunity given for the names to be examined.
The top court also issued notice on the plea challenging the constitutional validity of the CEC Act and asked the central government to respond to the same within six weeks.
The order of the apex court came on applications filed by Congress leader Ajaya Thakur and others seeking direction to restrain the Centre from appointing new Election Commissioners under the Act.
It was on March 21 that the Union Government defended the appointment of the two election commissioners, Gyanesh Kumar and Sukhbir Singh Sandhu, by a panel that did not include the Chief Justice of India.
It filed an affidavit opposing the applications seeking stay on the appointment and the Act, saying there was an attempt to create a row over the appointment of Election Commissioners.
The Union Government said that a political controversy is being created on the basis of “unsupported and pernicious statements,” dispelling any notion of bias or ulterior motives behind the appointment of poll panel officials.
Earlier, the plea seeking stay on the Act was moved by the Association for Democratic Reforms (ADR) and Jaya Thakur (General Secretary of the Madhya Pradesh Mahila Congress Committee), Sanjay Narayanrao Meshram, Dharmendra Singh Kushwaha, and advocate Gopal Singh.
At that time, the apex court had refused to stay the operation of the Election Commissioner Act, 2023, issued notice to the Centre, and sought a response in April.
The pleas challenged the Election Commissioners’ law that has dropped the Chief Justice of India from the selection panel for appointing Chief Election Commissioners (CEC) and other Election Commissioners (ECs).
The petitions stated that the provisions of the enactment, are violative of the principle of free and fair elections since they do not provide an “independent mechanism” for the appointment of the members of the Election Commission of India (ECI).
The petitions said the Act excludes the Chief Justice of India from the process of appointment of the members of ECI and it’s in violation of the March 2, 2023, verdict of the top court, which had ordered that the appointment of members of the ECI be done on the advice of a committee comprising the Prime Minister, the CJI and the Leader of Opposition in Lok Sabha till a law is made by the Parliament.
By excluding the CJI from the process, the judgement of the Supreme Court stands diluted, as the Prime Minister and his nominee will always be “the deciding factor” in the appointments, said the petitions.
The petitions in particular challenged Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The provisions lay down the procedure for the appointment of ECI members.
They sought direction to the Centre to include the Chief Justice of India in the selection committee for the appointment of the CEC and ECs, which currently consist of the Prime Minister, the Leader of the Opposition in Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
The Act replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. (With inputs from ANI)
