Staying appointment of new ECs will lead to chaos, uncertainty: SC observes

New Delhi: The Supreme Court on Thursday refused to stay the appointment of new election commissioners Gyanesh Kumar and Sukhbir Singh Sandhu, saying that doing so would lead to "chaos and uncertainty" as the Lok Sabha elections are round the corner.

Observing that the Election Commission is not under the "thumb of executive", the apex court also refused to grant an interim stay on the operation of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023.

A bench of Justices Sanjiv Khanna and Dipankar Datta said, "At this stage, we cannot stay the legislation or put it under suspension by way of interim order. It would lead to uncertainty and chaos in case of stay." The top court 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.

It posted the matter for resumed hearing on August 5.

"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.

The top court was hearing a batch of pleas, including those filed by Congress leader Jaya Thakur and NGO 'Association for Democratic Reforms', who sought a stay on the appointment of the new election commissioners and challenged the validity of the 2023 law which excluded the Chief Justice of India from the Selection Committee meant to pick the new ECs and the CEC.

"We are dismissing the applications for stay on the appointment," the bench said.

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 the 1950s and the country has had very good ECs 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 alleged non-compliance of the 2023 apex court verdict, saying the Chief Justice of India has been dropped from the selection panel.

The top court said the 2023 verdict of the constitution bench nowhere held there has to be a representative from the judiciary on the selection panel for the appointment of election commissioners and the CEC in the new law and that the court had left it to Parliament.

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 bench told Bhushan that the 2023 verdict, which proposed a selection panel comprising the prime minister, the leader of the opposition in the Lok Sabha and the Chief Justice of India, was intended to be in force until Parliament enacted a new law governing the appointment of the ECs and the CEC.

The verdict was intended to nudge Parliament to enact a law as there was a "vacuum" but it didn't say what kind of law should be made, Justice Khanna told Bhushan.

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.

Under the new law, the selection panel has the prime minister as the chairperson, and the leader of opposition or leader of the largest opposition party and a Union minister nominated by the prime minister are the two other members.