The Supreme Court has refused to stay the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (CEC Act) that takes care of appointment of Chief Election Commissioner (CEC) and Election Commissioners (EC) by a selection committee which has Prime Minister (PM), a Union Cabinet Minister, and the Leader of the Opposition in the Lok Sabha.
A bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta have refused to interfere with the appointment Sukhbir Singh Sandhu and Gyanesh Kumar as of two new Election Commissioners.
The bench was hearing a challenge to the newly enacted law for appointment and service conditions of the Chief Election Commissioner (CEC) and other Election Commissioners.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act of 2023 has been challenged on the ground that it runs contrary to the direction issued by the top court in its judgment in Anoop Baranwal v. Union of India and ors, which had called for the inclusion of the CJI in the appointment process of ECs.
The Court ordered that they would like to dismiss the application for stay and would give reasons later. In its order, the bench said that prior to the enactment of law, the appointment to Election Commissioners was done by the executive and it would not be proper for them to question the independence of the poll body.
Justice Khanna said that from TN Seshan case and even thereafter, Election Commissioners were appointed by the executive and then upheld by this court.
On behalf of petitioner Association for Democratic Reforms, Senior Advocate Prashant Bhushan said constitutional principles were being undermined and persons under the thumb of the executive.
Justice Khanna clarified that one cannot say that the Election Commission is under the thumb of the executive.
The bench further said that staying the law now just before the upcoming Lok Sabha elections will only result in chaos.
Justice Khanna also clarified that they cannot stay the legislation at this stage as it will only lead to chaos and uncertainty.
The bench added that even leader of the largest opposition party is a member of this committee.
The Central government which was represented by Solicitor General Tushar Mehta, also argued against the stay saying that none of them could say a single thing about the Election Commissioners.
The Court then passed an order refusing stay. It, however, issued notice on the plea challenging the validity of the CEC Act and asked the Central government to respond to the same within six weeks.
While the Court had said in the Anoop Baranwal judgment that the panel should comprise the Prime Minister, Leader of Opposition and the CJI, the CEC Act provides for a cabinet minister as a panel member instead of the CJI.
The law was challenged before the Supreme Court by Dr Jaya Thakur on concerns that the ruling government would dominate the new selection panel and would run counter to the Anoop Baranwal judgment.
In January this year, the Supreme Court sought the response of the Central government and the Election Commission of India (ECI) in the matter. However, it refused to stay the law.