SC refuses to stay appointment of ECs, says it will lead to chaos

The Supreme Court on Thursday declined to put on hold the appointment of two election commissioners’ under the Chief Election Commissioner and Other Election Commissioners Act, 2023, which dropped the Chief Justice of India from the selection panel for election commissioners.

A bench of Justices Sanjiv Khanna and Dipankar Datta dismissed all the applications seeking stay on the appointment of two election commissioners, saying elections are round the corner and stay on the appointment would result in “chaos and uncertainty.”

The bench said it would pass a detailed order later.

“Now they (election commissioners) have been appointed, elections are round the corner... There are no allegations against persons appointed. You cannot say that election commission is under the thumb of the executive. At this stage we cannot stay the legislation and it will lead to only chaos and uncertainty,” said the bench.

The bench also questioned the Centre for the speed in which the Search Committee shortlisted candidates and the speed with which two election commissioners were selected by the selection committee.

The apex court, however, clarified that it is not questioning the credentials of the election commissioners selected, but on the procedure in which the selection was made.

Solicitor General Tushar Mehta, appearing for the Centre, told the bench that the process had started in February, immediately after the Act came into force.

To this, the bench remarked that there were two aspects in the present case, one being whether the Act itself was constitutional and the other being the procedure adopted and added that there could have been an opportunity given for the names to be examined.

The top court also issued notice on the plea challenging the constitutional validity of the CEC Act and asked the central to respond to the same within six weeks.

The order of the apex court came on applications filed by Congress leader Ajaya Thakur and others seeking direction to restrain the Centre from appointing new Election Commissioners under the Act.

On Wednesday, the Centre defended the appointment of the two election commissioners, Gyanesh Kumar and Sukhbir Singh Sandhu, by a panel that did not include the Chief Justice of India.

It filed an affidavit opposing the applications seeking stay on the appointment and the Act, saying there was an attempt to create a row over the appointment of election commissioners.

The central government said that a political controversy is being created on the basis of “unsupported and pernicious statements,” dispelling any notion of bias or ulterior motives behind the appointment of poll panel officials.

Earlier, the plea seeking stay on the Act was moved by the Association for Democratic Reforms (ADR) and Jaya Thakur (General Secretary of the Madhya Pradesh Mahila Congress Committee), Sanjay Narayanrao Meshram, Dharmendra Singh Kushwaha, and advocate Gopal Singh.

At that time, the apex court had refused to stay the operation of the Election Commissioner Act, 2023 and issued notice to the Centre, and sought a response in April.

The pleas challenged the Election Commissioners’ law that has dropped the Chief Justice of India from the selection panel for appointing Chief Election Commissioners (CEC) and other Election Commissioners (ECs).

The petitions stated that the provisions of the enactment, are violative of the principle of free and fair elections since it does not provide an “independent mechanism” for the appointment of the members of the Election Commission of India (ECI).

The petitions said the Act excludes the Chief Justice of India from the process of appointment of the members of ECI and it’s in violation of the March 2, 2023, verdict of the top court, which had ordered that the appointment of members of the ECI be done on the advice of a committee comprising the Prime Minister, the CJI and the Leader of Opposition in Lok Sabha till a law is made by the Parliament.

By excluding the CJI from the process, the judgement of the Supreme Court stands diluted, as the Prime Minister and his nominee will always be “the deciding factor” in the appointments, said the petitions.

The petitions in particular challenged Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The provisions lay down the procedure for the appointment of ECI members.

They sought direction to the Centre to include the Chief Justice of India in the selection committee for the appointment of the CEC and ECs, which currently consist of the Prime Minister, the Leader of the Opposition in Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.

The Act replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

There are no allegations against persons appointed... At this stage we cannot stay the legislation and it will lead to only chaos and uncertainty.