Stay on appointment of new Election Commissioners before Lok Sabha polls would lead to chaos: Supreme Court

The Supreme Court recently said that a stay on the appointment of former bureaucrats Gyanesh Kumar and Dr. Sukhbir Singh Sandhu as new Election Commissioners (ECs) at this stage "would lead to uncertainty and confusion, if not chaos" as the dates for Lok Sabha elections have now been fixed [Dr. Jaya Thakur and ors vs Union of India and ors]..The top court on Thursday had declined to stay the appointments after hearing the applications for stay in the petitions challenging The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (CEC Act). In a detailed order released on Friday, the bench of Justices Sanjiv Khanna and Dipankar Datta said any order stay "would lead to chaos and virtual constitutional breakdown"."We do not deem it appropriate at this stage, keeping in view the timelines for the upcoming 18th General Elections for the Lok Sabha, to pass any interim order or direction. As indicated above, this would lead to chaos and virtual constitutional breakdown," the order said.The Court also said that the presence of two more ECs "brings about a balance and check" to the Election Commission of India (ECI) which has an important and humongous task at its hands."Any interjection or stay by this Court will be highly inappropriate and improper as it would disturb the 18th General Election for the Lok Sabha which has been scheduled and is now fixed to take place from 19.04.2024 till 01.06.2024," it added. .We do not deem it appropriate at this stage, keeping in view the timelines for the upcoming 18th General Elections for the Lok Sabha, to pass any interim order or direction. As indicated above, this would lead to chaos and virtual constitutional breakdown.Supreme Court.It also noted that the merits of the persons appointed had not been commented on or questioned before it. "Further, EC being a constitutional post, it is wise to remind ourselves that once a constitutional post holder is selected, they are duty bound to act in accordance with the letter and spirit of the Constitution. The assumption is that they shall adhere to constitutional role and propriety in their functioning," the bench said.In this context, the top court also reproduced the following comment of Dr BR Ambedkar:“However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”.The appointment of the new ECs was challenged by the same petitioners who have already moved the top court against the CEC Act.The recently-enacted law provides for appointment to the posts of Chief Election Commissioner (CEC) and Election Commissioners (EC) by a selection committee comprising the Prime Minister (PM), a Union Cabinet Minister, and the Leader of the Opposition in the Lok Sabha.One of the main grounds in the petitions is that the law dilutes the Constitution Bench's decision in Anoop Baranwal v. Union of India and ors by "substituting the Chief Justice of India (CJI) with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee".The appointment of the new ECs was challenged on the ground of procedural irregularity, transparency and objectivity in the selection process. It was also alleged that the Leader of Opposition was not furnished necessary details of the six shortlisted candidates in advance to effectively participate in the process..The Court at the outset said it would not go into the depth and details of the challenge to the Act. However, it remarked that the judgment in Anoop Baranwal case was only passed because there was legislative vacuum then."Given the unique nature of the provision and absence of an enactment, this Court had issued directions constituting the Selection Committee as a pro-tem measure. This is clear from the judgment, which states that the direction shall hold good till a law is made by the Parliament," it said..On the stay and demand for fresh appointment of ECs with CJI as a member of the Selection Committee, the Court opined that it would be "plainly impermissible" at this stage without declaring the provisions of the law unconstitutional. "Further, we would be enacting or writing a new law replacing or modifying Section 7(1) of the Act, as enacted by the Parliament, if such a contention were accepted," it said..However, the Court did express its concern on the procedure adopted for the selection of the two ECs and remarked that such selections should be made with full details and particulars of the candidates being circulated to all members of the Selection Committee."Procedural sanctity of the selection process requires fair deliberation with examination of background and merits of the candidate".However, the Court still did not find sufficient grounds to stay the appointments at this stage, "keeping in view the timelines for the upcoming 18th General Elections for the Lok Sabha"..[Read Order]