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NEW DELHI: The Supreme Court on Thursday dismissed pleas against appointment of two new Elections Commissioners by a Selection Committee without the Chief Justice of India as per the law enacted in 2023.
"We cannot stay the legislation now and this will only lead to chaos and uncertainty. Even leader of largest opposition party is member of this committee," a bench of Justices Sanjiv Khanna and Dipankar Datta said.
The court refused to stay the 2023 law on appointment of Chief Election Commissioner and Election Commissioners.
The court, however, said the Selection Committee members could have been given more time on deliberations.
The manner in which the government went about expediting the appointments was "unnecessary and avoidable", the court said.
Retired IAS officers Gyanesh Kumar and Sukhbir Singh Sandhu were on March 14 appointed as Election Commissioners, a day before the Supreme Court was scheduled to hear a matter related to it.
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"One has to be careful with such constitutional appointments. The Leader of the Opposition was given no time to consider the candidates ahead of the meeting. 200 names seem to have been considered within within hours," the court said.
The bench said the government could have deferred meeting for a day or two when the matter was sub judice.
"We are on procedure. Justice must not only be done, it must be seen to be done. We are dealing with Representation of People Act which according to me is highest after Constitution," the bench said.
"You must give members of the Selection Committee time to apply their mind to the names before them. Parliament has enacted a law and it means member of Selection Committee has to apply their mind to it," the bench told Solicitor General Tushar Mehta, appearing for the Centre.
After hearing senior advocates Vikas Singh, Gopal Sankaranarayanan and advocate Prashant Bhushan, for petitioners, the bench said that it cannot be presumed that the law enacted by the Centre is wrong.
"There are no allegations against the persons who have been appointed. Elections are around the corner. Balance of convenience is very important," the bench said.
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The court rejected the applications for stay saying it would provide the reasons subsequently in detailed order.
During the hearing, the counsel submitted the Supreme Court's Constitution bench in March, 2023 in Anoop Baranwal case repeatedly flagged threats to free and fair elections.
"Founding fathers envisioned a law to be made to take this this power resting exclusively with the executive. In fact National Judicial Appointment Commission was struck down for this reason, to maintain free and independent judiciary. Even Law Minister's presence was considered sufficient interference in judicial appointments and it was struck down on grounds of basic structure," Bhushan said.
He said the appointment cannot solely be left at hands of Executive, which posed a threat to free and fair elections.
"The procedure for CEC and judges appointments are very different under original Constitution. So the comparison may not be correct. But yes it has to be free, fair and independent," the bench said.
In an affidavit, the Law and Justice Ministry had on Monday told the Supreme Court that 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.
It also said equally, the presence of senior government functionaries, or a Minister on the selection committee cannot itself be a ground to automatically assume bias on behalf of the Committee.
The SC's Constitution bench had declared that the appointment of CEC and ECs would be made by the President on advice of a panel, comprising Prime Minister, Leader of Opposition and Chief Justice of India, until a law is put in place in this regard.
The government enacted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, dropping the CJI from the Selection Committee by a Union Minister.
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