SC refuses to stay appointment of poll officers through new law | Latest News India - Hindustan Times
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SC refuses to stay appointment of poll officers through new law

Mar 22, 2024 03:00 AM IST

SC berated the Union government for expediting the appointment process while the matter was still before the highest court

New Delhi The Supreme Court on Thursday refused to stay the appointment of two new election commissioners (ECs) under a recently enacted statute, noting that the law cannot be blamed exclusively for lacking a judge on the selection panel, and added that the court cannot order Parliament to draft legislation in a specific way.

SC noted that the law cannot be blamed exclusively for lacking a judge on the selection panel. (ANI)
SC noted that the law cannot be blamed exclusively for lacking a judge on the selection panel. (ANI)

Even as the bench of justices Sanjiv Khanna and Dipankar Datta did not find the situation “exceptional” or “extraordinary” justifying its interference, it berated the Union government for expediting the appointment process while the matter was still before the highest court. It also questioned the delay in sending the shortlisted names to the selection panel that it said considered 200 names in two hours, observing that the government ought to have been “more careful” in avoiding the controversies around the constitutional posts.

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The proceedings before the top court on Thursday centered around a pair of applications demanding a stay on the operation of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

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Questioning the alleged haste shown by the government in appointing two new ECs on March 14, the pleas argued that until the legality of the 2023 law was decided, the government should be ordered to fill the vacancies in the Election Commission of India (ECI) through a consultative procedure that included the Chief Justice of India (CJI) in the selection panel.

Senior counsel Vikas Singh, Sanjay Parikh, Gopal Sankaranarayanan and advocates Prashant Bhushan and Kaleeswaram Raj appeared on behalf of applicants seeking a stay on the Act and pressing that a fresh appointment of two new ECs should take place by a selection panel envisaged by a Constitution bench judgment of the Supreme Court in March last year. The judgment in Anoop Baranwal Vs Union of India said that the selection of CEC and ECs should be done by a panel headed by the Prime Minister and comprising two other members – leader of Opposition in Lok Sabha and the CJI, to ensure transparency in the selection mechanism.

Turning down their plea, the bench said that the March 2023 judgment was a “nudge” to Parliament for enacting a law since all appointments were being made by the President on an advise from the council of ministers.

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“It’s not that elections were not being held before this judgment. And we had some excellent election commissioners. We agree there was a push from this court on the procedure. But this court did not say what sort of a law must be passed. Until a law was framed, a via media was prescribed (in the form of a selection panel including the CJI). This court stepped in to ensure there is a law. Once a legislation is framed, it will have to be challenged on different grounds,” it added.

Agreeing with the petitioners that independent ECs are a must in the interest of democracy, the bench said that it cannot be postulated that all panels must have a member of judiciary.

“The judgment (in Baranwal case) does not say that a member of the judiciary has to be there. The Constitution bench took exception to the council of ministers advising the President. It then left it for Parliament to frame a law and lay down a mechanism for the time being. Now, the old mechanism has been replaced by a parliamentary law. Nowhere in this judgement did the court say who should be the members. How can a court direct Parliament to frame a law in a particular manner...we cannot say all other methods where there is not a judicial member is wrong,” it remarked.

The court said it is willing to examine the new law’s validity, but the legislation cannot be stayed in the meantime. “Those are exceptional cases where the law was stayed. This is not a case where we can say you are bound to succeed. We may accept your submission once we hear the case, but we cannot say today that it’s the only possible outcome,” it added.

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Further, the bench said that the balance of convenience lies in favour of the government when the general elections are round the corner. “One member commission or three- member commission? And there are no allegations against the members,” it said.

Turning to solicitor general Tushar Mehta, the bench asked the law officer representing the government to explain the procedure of how the two ECs were picked up. The President on March 14 appointed retired bureaucrats Gyanesh Kumar and Sukhbir Singh Sandhu as ECs after the high-level selection committee met in the morning. It was the first time that ECs were chosen under the new law. Two days later, ECI announced the 2024 general elections, due to begin on April 19.

“One of the ways to ensure fairness is to give sufficient time to the members of the selection panel for examining the names. You gave all names to them only on the morning of March 14.... What was the time given to LoP to consider the names? 200 names had to be considered within two hours...You could have been transparent. Your search panel should have been activated earlier. This could have been easily avoided by giving names in advance of 2-3 days,” it told the SG.

While Mehta pointed out that the expediency followed due to the election schedule, the bench said that adequate time must be given to all members of the selection committee when appointments of ECs are to take place. “Their views are important...One has to be careful. These are constitutional appointments. Every member of the selection committee must have sufficient time to apply his or her mind. Justice must not only be done, it must also be seen to be done.” it said.

The court also did not find favour with the Centre “fast-tracking” the appointment of ECs while the applications for stalling these appointments remained pending before it.

“What is a matter of concern that it should have been avoided. Not only what happened in the committee but also that the appointments could have been deferred since there were applications in this court...Once it was mentioned, it should have been delayed by a day or two,” it said.

The court further told Mehta: “You should have gone a little slowly. For selecting one EC, you earlier fixed the meeting on March 15. For appointing two, you advanced it to March 14?” The SG said that he would be able to satisfy the bench on all counts once the matter is heard in detail.

In an affidavit on Wednesday, the Centre opposed the pleas filed by Congress leader Jaya Thakur and non-profit Association for Democratic Reforms (ADR) for suspending the 2023 law, emphasising that the new law envisions a “democratic, collaborative and inclusive” regime that cannot be faulted solely for not having a judge on the selection panel.

“The case of the petitioners is premised on one fundamental fallacy that independence can only be maintained in any authority when the selection committee is of a particular formulation. It must be noted that the independence of the Election Commission, or any other organisation or authority, does not arise from and is not attributable to the presence of a judicial member in the selection committee,” said the Centre’s affidavit.

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