The Supreme Court on Thursday said it cannot put on hold, the controversial Chief Election Commissioner and Other Election Commissioners Act, 2023, saying it would only lead to chaos. The court's observation came as a bench comprising Justices Sanjiv Khanna and Dipankar Datta heard writ petitions challenging the constitutionality of various provisions of the Act.
On March 15, the court refused to stay the appointment of new Election Commissioners (ECs) under the 2023 law, that excludes the Chief Justice of India from the selection committee.
Spelling out the court's order, Justice Sanjiv Khanna today said, "You cannot say that the Election Commission is under the thumb of the executive. At this stage, we cannot stay the legislation, and it will lead to only chaos and uncertainty."
"The Election Commission has to be independent and fair." the bench said.
"Normally and generally, we do not stay a law by way of an interim order," it added.
The petitions in the case were filed by Congress leader Jaya Thakur, the Association for Democratic Reforms, and others, questioning the legitimacy of the Act's amendments, particularly the exclusion of the Chief Justice of India from the selection panel.
Advocate Prashant Bhushan, representing the Association for Democratic Reforms, referred to the sequence of events leading up to the selection committee's meeting and the filing of applications, seeking a stay on the Act.
He pointed out that the vacancies for the role were issued on March 9, and on the same day, a second vacancy arose, which pushed the government to reschedule the meeting.
Bhushan dissected the government's actions before the bench, pointing out glaring discrepancies in the selection process. He underscored the rapidity with which the appointments were made, seemingly orchestrated to pre-empt judicial intervention and circumvent due diligence.
In response, Justice Khanna questioned Bhushan on the grounds for challenging the Act, emphasising the balance of convenience and the absence of allegations against the appointed election commissioners.
"Now they have been appointed, elections are on the corner... it is a question of balance of convenience. There are no allegations against persons appointed," Justice Khanna said.
While the bench assured the petitioners that their arguments would be examined, it refrained from suspending the legislation at this stage.
The court had deferred till March 21, the hearing on a batch of pleas challenging the appointments of the two Election Commissioners under the 2023 law.
The two vacancies had arisen after the retirement of Anup Chandra Pandey on February 14 and the sudden resignation of Arun Goel. Retired IAS officers Gyanesh Kumar and Sukhbir Singh Sandhu were appointed in their place.
In December last year, both Houses of the Parliament approved the Election Commissioners' Act, replacing the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, introducing key changes to the appointment, salary, and removal procedures for top election officials.
A notable feature of the new legislation is that the President of India would appoint the election commissioners on the strength of a selection committee's recommendation, prepared after considering a list of candidates proposed by a search committee headed by the union law minister.
According to Section 7, the selection committee would consist of the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition or the leader of the largest opposition party in the Lok Sabha.
On Wednesday, the Centre in the Supreme Court defended the appointment of two new Election Commissioners (ECs) under the 2023 law, saying the independence of the Election Commission does not arise from the presence of a judicial member on the committee.
