NEW DELHI: The Supreme Court on Thursday dismissed applications seeking a stay on the appointment of new election commissioners (ECs), saying it would lead to "chaos" and "uncertainty" as the elections are round the corner.
It said it cannot put on hold, the contentious Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023, saying it would only lead to chaos and uncertainty.
"You cannot say that the Election Commission is under the thumb of the executive. At this stage, we cannot stay the legislation or suspend its operation. It would lead to chaos and uncertainty and we cannot do it (stay) by way of an interim order. There are no allegations against the new election commissioners," a bench of Justices Sanjiv Khanna and Dipankar Datta told the petitioners who have challenged the new law.
The top court then said it will examine the main petitions challenging the validity of the 2023 Act and asked the Centre to file its response within six weeks and posted the matter for hearing on August 5.
"We will also examine Act for appointment of ECs but we are currently focusing on interim relief as elections are approaching," the top court said today.
"They have been appointed and elections are round the corner. The balance of convenience is a very important factor. We have to see what the effect is if we do it, what are the consequences which will follow. One-member commission or three-member commission, plus, there are no allegations against the new election commissioners per se," the bench told the petitioners who have challenged their appointment.
During the hearing, the bench questioned the haste with which the Centre went ahead with the appointment of the two new election commissioners.
"Justice must not only be done, it must be seen to be done. We are dealing with the Representation of the People Act, which according to me, is the highest after the Constitution. Why leave any scope for the public to raise an eyebrow?" Justice Datta told Solicitor General Tushar Mehta, who appeared for the Centre.
Observing that it cannot be denied that election commissioners should be independent and fair, the bench said polls have been held since Independence and the country has had very good election commissioners in the past.
It told advocate Prashant Bhushan, representing the NGO, "Earlier ECs were appointed by executive decisions and now they are being appointed as per the parliamentary law. There cannot be framing of law in a particular way."
Bhushan had alleged non-compliance of the 2023 apex court verdict, saying the Chief Justice of India has been dropped from the selection panel.
Bhushan said there will not be any chaos and the new ECs may be allowed to work for some time as elections are round the corner.
Thereafter, fresh appointments can be made by a panel that includes the CJI, as was proposed in the 2023 verdict, he said.
The top court also pointed out, "The 2023 verdict nowhere says there has to be a member from the judiciary in the selection panel for EC appointment."
It said the intent of the 2023 verdict, which proposed a selection panel comprising the prime minister, the Leader of Opposition, and the Chief Justice of India, was for a period till Parliament enacts a law.
The verdict was intended to nudge Parliament to enact law as there was a "vacuum" and it didn't say what kind of law should be made, the bench said.
The bench said it prima facie agrees with Bhushan's submission that the procedure adopted for the appointment of the two new ECs was not transparent.
While questioning the procedure adopted by the Centre, it told Mehta that the selection committee should have been given more time to apply its mind to the appointment of the new ECs.
"The selection committee for appointment of election commissioners should have been given a fair share of time to understand the background of candidates," the bench observed.
It said, "For one vacancy, there were 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, maybe 2 hours. 200 names to be considered in 2 hours? You could have been transparent," the bench said, after Mehta pointed out that the two new election commissioners were among the six short-listed from a pool of 200 names suggested by a search panel.
On Bhushan pointing out to the bench that the meeting of the selection committee was advanced, Justice Khanna told Mehta that the Centre should have deferred the meeting by a day or two as it knew about the pendency of the matter in the apex court.
"The manner in which it was done could have been avoided. The matter was sub-judice. Plus, a member of the selection committee had also said that he needed some time to go through the names," Justice Khanna said.
Leader of the Congress Parliamentary Party in the Lok Sabha Adhir Ranjan Chowdhury had said he needed some time to go through the 200 names.
The bench said it is not questioning the credentials of the election commissioners appointed but the procedure.
Background
The Centre on Wednesday had defended in the Supreme Court the appointment of two new election commissioners under a 2023 law that excludes the Chief Justice of India from the selection committee, saying the independence of the Election Commission does not arise from the presence of a judicial member on the committee.
In an affidavit filed in the apex court, the Union Law Ministry had rejected the petitioner's claim that the two election commissioners were hastily appointed on March 14 to "pre-empt" the orders of the top court the next day, when the matters challenging the 2023 law were listed for hearing on interim relief.
The affidavit had been filed in response to a batch of pleas, including those by Congress leader Jaya Thakur and the Association for Democratic Reforms, challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023.
The top court had deferred till March 21, the hearing on a batch of pleas challenging the appointments of the two Election Commissioners under the 2023 law.
The two vacancies had arisen after the retirement of Anup Chandra Pandey on February 14 and the sudden resignation of Arun Goel. Retired IAS officers Gyanesh Kumar and Sukhbir Singh Sandhu were appointed in their place.
Under the new law, the selection panel has the prime minister as the chairperson, and the leader of opposition and a Union minister nominated by the prime minister are the two other members.
A five-judge constitution bench had in March 2023 ruled that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) shall be appointed on the advice of a committee comprising the prime minister, the leader of the opposition in the Lok Sabha and the Chief Justice of India.
(With online desk inputs)
