Executive appointed Election Commissioners for 73 years: Centre to Supreme Court

Election Commissioners in India were being appointed exclusively by the executive for 73 years, the Central government told the Supreme Court on Wednesday while defending the recent appointment of two Election Commissioners without any involvement of the Chief Justice of India (CJI)..Notably, the two appointments have drawn controversy since they were made by a selection panel that does not include the CJI, contrary to the selection mechanism proposed by the Supreme Court in a 2023 judgment. The two appointments were made by a panel constituted under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (CEC Act), which was enacted after the 2023 judgment and the validity of which is still in question before the Supreme Court. .The Central government pointed out that even before the enactment of the CEC Act, for 73 years from 1950 till 2023, the appointment of the Election Commissioners was being made by the executive exclusively.In an affidavit filed before the top court on Wednesday, the Centre also argued that the deliberations of the high level committee under CEC Act which preceded the appointment of these officers, were collaborative.It added that the credentials of two recently appointed Election Commissioners, Sukhbir Singh Sandhu and Gyanesh Kumar, have at no point been called into question."No objection whatsoever has been raised about the fitness eligibility or competence of any of the persons named in the list to serve as Election Commissioner. There are no allegations against the Election Commissioners appointed are also made. Instead a political controversy is sought to be created only on the basis of bare, unsupported and pernicious statements about certain vague and unspecified motives behind the appointment," the Central government submitted. .The two election officers were appointed in the wake of the March 9 resignation of Election Officer Arun Goel. Goel's abrupt resignation had left only Chief Election Commissioner Rajiv Kumar on the ECI in the run-up to the upcoming Lok Sabha polls. Shortly after his resignation, Congress leader Dr. Jaya Thakur moved a plea before the Supreme Court to restrain the Central government from invoking the CEC Act to fill two vacant Election Commissioner posts.On March 14, the Central government filled the two vacancies by following the procedure laid down in the CEC Act. On March 15, the Supreme Court refused to pass any order interfering with these appointments. On the said day, a bench of Justices Sanjiv Khanna, Dipankar Datta and Augustine George Masih also refused (again) to stay the operation of the CEC Act, while deferring the hearing of the petitions challenging the controversial law by a week. The law was already under challenge by the same petitioners, when the two new ECs were appointed. The law has been challenged on the ground that it runs contrary to the direction issued by the top court in its 2023 judgment in Anoop Baranwal v. Union of India and ors, which had called for the inclusion of the CJI in the appointment process.While the Court had said in the Anoop Baranwal judgment that the panel should comprise the Prime Minister, Leader of Opposition and the CJI, the CEC Act provides for a cabinet minister as a panel member instead of the CJI.On March 15, the top court reiterated that it would not stay laws by way of interim orders but agreed that the Central government should respond to the issues raised over the exclusion of the CJI from the selection panel..The Central government, in its reply, argued that when the legislature has enacted a law (CEC Act, in this case) it ought to be presumed to be constitutional. Therefore, replacing such a regime would be impermissible, the government has contended."As far as interim relief (a stay on the CEC Act) as sought by the Petitioners is concerned, the said fact belies all claims of partiality," the Centre's reply added. The Central government further contended that any interim order sought by the petitioners (who have challenged the CEC Act) would amount to a stay on a validly enacted law at an interim stage which is impermissible and beyond the scope of a judicial review.