New Delhi: The Supreme Court on Thursday asked probing questions to the Centre regarding the procedure adopted in the appointment of two new election commissioners, and pointed out that the matter of concern is the manner in which appointments were made.
The apex court also remarked that selection committee members should have been given more time to examine the candidates shortlisted for the appointment. The apex court stressed that Centre has to be careful on these appointments as these are constitutional.
A bench comprising Justices Sanjiv Khanna and Dipankar Datta said it could not stay the legislation just before the upcoming general election, as “this will only lead to chaos and uncertainty”. However, the bench emphasised that the Centre could have been more “transparent” in the procedure adopted for the appointment of two new election commissioners.
“The other thing is the procedure which has been adopted. One of the ways for selection is the opportunity for all the members on the selection committee to examine the names. You give them (names) on March 14, something which they (petitioners) have a point there…”, said Justice Khanna. The bench accepted petitioners’ contention that the selection committee members should have been given more time to examine the names shortlisted for the appointment.
Justice Datta queried Solicitor General Tushar Mehta about the search committee. “All 200 names go before all the members of the committee and it is open for any member...”, said Mehta.
However, Justice Khanna said this could have been easily avoided by giving two or three days after giving the names to the committee. Mehta stressed that the process did not start after an application by the petitioners seeking a stay, instead the process started in February and “we have to do the reverse counting as June 16, 2024, when the new Parliament will be constituted”.
Justice Khanna said “you should have gone a little more slowly”. “For selecting one you keep (the meeting) on March 15, and for selecting two you advance it to March 14”, said Justice Datta. “The search committee should have been activated earlier. Search committee you cannot keep right till the end….”, said Justice Khanna.
The bench said, “any appointment of this nature must give every member of the committee, right to put their views. Their views are important…” “Here is another thing, for one vacancy five names (by search committee) and for two vacancies it is only 6, why not 10. This is the language of the statute….”, said Justice Datta.
“You have to be careful on these appointments, these are constitutional appointments. Parliament has enacted a law; it also means that the person who is a member of the selection committee must have a fair share to understand the background of the persons and put across his views. That is important, makes no difference five days here or there….”, said Justice Khanna, further querying whether there is a provision that elections have to be declared by a particular date. Mehta replied in negative. Mehta said there are four states that are also scheduled in addition to the general election, and it is humongous work.
The bench said, “why not allow people to raise their voices that this is not fair, transparent”. Mehta said the notification for seven phase election was issued on March 16.
“What was the matter of concern, the manner in which it's been done, it could have been avoided not only reference to what happened in the selection committee….maybe one day or two days here and there would not have mattered. Once the matter was mentioned here, better to defer it by a day or two. When the person (Leader of Opposition) on the selection committee says 'I want some time'”, said Justice Khanna. Mehta replied that "experience is delay and delay".
The petitioners’ claimed that the 2023 Act was violated when a selection committee member and leader of the opposition of the largest party Congress, Adhir Ranjan Chowdhury, recorded his dissent and questioned the procedure followed.
The bench said, "they can consider 200 names, but what is the time given? Maybe two hours? 200 names to be considered in two hours? You could have been transparent". However, after a detailed hearing in the matter, the apex court rejected the applications for stay of the new appointments.
The court was hearing applications filed by Congress leader Jaya Thakur and the Association for Democratic Reforms (ADR) against the appointment of election commissioners under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The ADR had filed an application on 11 March this year, urging the apex court to pass a direction that the two election commissioners’ vacancies be filled using the process suggested in the court’s judgment in March 2023, because this new law for their appointment has been challenged before the court. Gyanesh Kumar and Sukhbir Singh Sandhu were appointed election commissioners on 14 March, before the application could come up for hearing.
In March 2023, a five-judge constitution bench had modified the process for appointing members of the Election Commission of India (ECI). The court held that a committee comprising the prime minister, the leader of the Opposition and the Chief Justice of India (CJI) would advise the President on ECI appointments.
However, the Centre passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which dropped the CJI from the committee.
Senior advocate Vikas Singh, representing Thakur, asked the court, “What was the point of this constitution bench judgement, then?” The bench replied that the fact that the judgment spoke of a vacuum in the law and to lay down the procedure for appointment of election commissioners. “The court never said we are inviting the Parliament to make a law in a particular way,” said the bench.
On petitioners’ contention that the appointments of election commissioners were made in haste, the bench said, “Now they have been appointed, elections are around the corner… It is a question of balance of convenience. There are no allegations against persons appointed.”
The Supreme Court declined to interfere with the appointment of the two new election commissioners, and also declined to stay the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which dropped the Chief Justice of India from the selection panel appointing election commissioners.
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