Supreme Court rejects plea to stay appointment of two new Election Commissioners

The Supreme Court on Thursday refused to stay The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (CEC Act) which 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 [Dr. Jaya Thakur and ors vs Union of India and ors]..A bench of Justices Sanjiv Khanna and Dipankar Datta also declined to interfere with the appointment of two new Election Commissioners - Sukhbir Singh Sandhu and Gyanesh Kumar. "We dismiss the application for stay. We will give reasons (later)," the Court ordered.The bench said that the appointment to Election Commissioners prior to the enactment of law, was being done by the executive and it would not be proper to question the independence of the poll body."From TN Seshan case and even thereafter, Election Commissioners were appointed by the executive and then upheld by this court," Justice Khanna said"Constitutional principles were being undermined.. and persons under the thumb of the executive," advocate Prashant Bhushan said on behalf of petitioner Association for Democratic Reforms. "You cannot say that the Election Commission is under the thumb of the executive," Justice Khanna replied.The bench further said that staying the law now just before the upcoming Lok Sabha elections will only result in chaos. "We cannot stay the legislation now and this will only lead to chaos and uncertainty. Even leader of the largest opposition party is a member of this committee," Justice Khanna remarked.Solicitor General Tushar Mehta, appearing for the Central government also argued against the stay."None of them could say a single thing about the Election Commissioners. They say we accelerated the process as soon as they filed the application.. But the process started in February and there has to be reverse counting," he said.The Court then passed an order refusing stay. It, however, issued notice on the plea challenging the validity of the CEC Act and asked the Central government to respond to the same within six weeks. .You cannot say that the Election Commission is under the thumb of the executive.Supreme Court.The bench was hearing a challenge to the recently-enacted law to govern the appointment and service conditions of the Chief Election Commissioner (CEC) and other Election Commissioners.The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act of 2023 has been challenged on the ground that it runs contrary to the direction issued by the top court in its judgment in Anoop Baranwal v. Union of India and ors, which had called for the inclusion of the CJI in the appointment process of ECs.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.The law was challenged before the Supreme Court by Dr. Jaya Thakur on concerns that the ruling government would dominate the new selection panel and would run contract to the Anoop Baranwal judgment.In January this year, the Supreme Court sought the response of the Central government and the Election Commission of India (ECI) in the matter.However, it refused to stay the law.Meanwhile, Election Commissioner Arun Goel resigned on March 9 after which the petitioners sought an urgent hearing of the case before the top court and also said that the new law should not be used to fill up vacancies.The selection panel, however, met and appointed former Indian Administrative Service (IAS) Officers Sukhbir Singh Sandhu and Gyanesh Kumar as Election Commissioners on March 14. The petitioners then sought urgent hearing in the case.The Central government meanwhile filed its reply stating that Election Commissioners in India were being appointed exclusively by the executive for 73 years,.During the hearing today, advocate Prashant Bhushan said that the tearing hurry in which the new ECs were appointed was to ensure that the plea for stay by the petitioner in Supreme Court is rendered infructuous."Selection committee initially gave over 200 names then on same day it shortlisted. It was aware (Supreme) Court is going to hear on March 14. It was designed to make our stay application infructuous," Bhushan said. He also highlighted how the composition of the current selection panel was not in tune with the Anoop Baranwal judgment.However, the Court pointed out that the judgment was delivered when there was no law in place and the judgment had therefore recommended a procedure up until a law was enacted."But this judgment was delivered when the law was not in place. When law is there.. we have to adjudicate upon the law in place," said Justice Khanna."Does the judgment say that there has to be a representative from judiciary. What the bench says that 70 years passed and law is needed to be made and thus make the law. Now the law is enacted," Justice Datta too weighed in.Justice Khanna further pointed out that the system was working even when there was no law and when the appointments were being made unilaterally by the government."President was making the appointments. Obviously it had worked. This Court cannot say why kind of law should be there in interim ... We had said there cannot be interim stay on law unless under exceptional circumstances. The judgment had nudged for a certain kind of law. Earlier also elections were held and we have had very good election commissioners," the Court said. .Senior Advocate Gopal Sankaranarayanan, also appearing for the petitioners, said that the founding fathers of the Constitution envisaged for a law to appoint ECs."It says that founding fathers envisaged that law by the parliament has to work and not the action of the executive. This is the interpretation of Article 324 of the Constitution and everyone is bound by the judgment of the Constitution bench and even the parliament," he said."You may call it judicial deference or judicial restraint but this judgment was when the law was not in place. SC said there is a need to make a law and in the absence of law, we are providing a committee. But now law is there, so you can challenge it. That is why we are asking them to respond," the bench replied."The two appointments should be subject to the proceedings of this case and there should be stay on Section 7 of the CEC & EC 2023 Act," Sankaranarayanan replied.Senior Advocate Vikas Singh pointed out how the Court had stayed a Kerala ordinance."Voters have right of expression under 19(1)(a)... this was noted in the judgment. According to me this (law) will put an end to the democratic process," said Senior Advocate Sanjay Parikh. "Let us not pass judgments like this," responded Justice Khanna.Advocate Kaleeswaram Raj pointed out how the Farm Laws were stayed by the Supreme Court.Solicitor General Tushar Mehta said that the directions in Anoop Baranwal judgment was to be applied until the enactment of a law."Please see para 319 of the judgment. the verdict makes it clear that this is subject to any law made by the parliament. the polls usually takes seven to eight phases. the process of the elections started in February," he said..The Court, however, took exception to the fact that the process was fast tracked by the government. "You could have gone slower," Justice Khanna said."For selecting one you hold on March 15th and for selecting two you prepone this to 14th," said Justice Datta."Search committee should have been activated earlier and this cannot be at the very end," Justice Khanna added.