Supreme Court dismisses petitions seeking stay on implementation of new law on appointment of CEC, ECs

Tribune News Service

Satya Prakash

New Delhi, March 21

The Supreme Court on Thursday dismissed petitions seeking a stay on the implementation of a recently enacted law on the appointment of Chief Election Commissioner and Election Commissioners that excluded the Chief Justice of India from the Prime Minister-led appointment panel.

A Bench led by Justice Sanjiv Khanna, however, said it will examine the main petitions challenging new law on appointment of the Chief Election Commissioner and Election Commissioners.

The Bench, which also included Justice Dipankar Datta, asked the Centre to file within six weeks its reply to the petitions challenging the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023.

The Bench said it will give reasons for dismissing the stay applications later.

“Now they (two new ECs) have been appointed, elections are on corner... It's a question of balance of convenience. There are no allegations against the persons appointed,” Justice Khanna noted.

However, the Bench posed certain questions on the procedure adopted in appointing the new ECs, saying there could have been an opportunity given for the names to be examined.

"This could have easily been avoided by giving 2-3 days. You should have gone more slowly," it said.

Noting that the search committee could have been activated earlier, the Bench pointed out that there was a disparity in procedure adopted for filling the two vacancies.

"For one vacancy, there are five names. For two, you send only six. Why not 10? This is what appears from the record. They can consider 200 names, but what is the time given? May be two hours? 200 names to be considered in two hours? You could have been transparent," it said.

"We are on procedure. Justice must not only be done; it must be seen to be done. We are dealing with the Representation of People Act, which according to me, is the highest after the Constitution," said Justice Dipankar Datta.

A panel led by Prime Minister Narendra Modi had on March 14 appointed Gyanesh Kumar and Sukhbir Singh Sandhu as Election Commissioners under the new law which was notified in the official gazette on December 28, 2023.  Election Commissioner Arun Goel had resigned recently.

The Supreme Court had on March 15 refused to stay the newly enacted law on appointment of the CEC and ECs in which the CJI has been replaced by a Union Cabinet Minister to be nominated by the Prime Minister in the three-member selection panel.

Defending the appointment of two new election commissioners under a 2023 law that excluded the Chief Justice of India from the selection panel, the Centre on Wednesday told the Supreme Court that independence of the Election Commission did not arise from a judicial member’s presence on the panel.

In an affidavit filed in response to petitions challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023, the Centre described the law under challenge as “a significant improvement in the appointment process of election commissioners,” the Centre said it provided for “a more democratic, collaborative, and inclusive exercise.” It also refuted the petitioners' claims of executive overreach and encroachment on the Election Commission's autonomy, terming it “wholly incorrect”.

The Centre rejected the allegation of petitioner Association for Democratic Reforms and others that the two ECs were hastily appointed on March 14 to "pre-empt" any possible orders from the top court which was to take up the matter the next day.

“Keeping in mind the ensuing national general election of such wide magnitude, geographical width and amplitude, and simultaneous elections of four states, it would have been humanly not possible for one chief election commissioner to discharge his functions alone. Therefore, two election commissioners were appointed on March 14, who have assumed significant functional, administrative and policy responsibilities in the commission. The schedule for the national general elections was also announced on March 16 and the process has started,” the affidavit read.

The Centre said the petitioners’ case was premised on one fundamental fallacy that the independence can only be maintained in any authority when the selection committee was of a particular formulation.

“It must be noted that the independence of the Election commission, or any other organisation or authority, does not arise from and is not attributable to the presence of a judicial member in the selection committee," the Centre submitted.

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