The Supreme Court on Thursday dismissed applications seeking to stay the appointment of Sukhbir Singh Sandhu and Gyanesh Kumar as Election Commissioners in accordance with a new law giving the dominant role to the Central government in the selection process.

The applications filed by NGO Association for Democratic Reforms and others had urged the court to stay the implementation of the Chief Election Commission and other Election Commissions (Appointment, Conditions of Service and Term of Office) Act, 2023. Section 7 of the Act had countermanded the apex court judgment by replacing the Chief Justice of India on the high-level selection committee with a Union Minister of the Centre’s choice.

Fresh appointments

The applicants had asked for fresh appointments to the posts of the two Election Commissioners on the basis of the Supreme Court judgment.

“We cannot stay the legislation… There will be a lot of chaos,” a Bench of Justices Sanjeev Khanna and Dipankar Datta said, pointing to the Lok Sabha elections already waiting at the doorstep, ready to commence from April 19.

Advocates Prashant Bhushan and Cheryl D’Souza, for the NGO, argued that the selection of election commissioners cannot be left in the hands of the Central government.

“This is against free and fair elections,” Bhushan argued.

But Justice Khanna said there was no allegations against Sandhu or Kumar.

The judgment was a stop-gap arrangement until the Parliament brought in a law on the appointments of Election Commissioners.

“For 70 years, from 1950 to 2023, the appointments were made by the government and we had people like TN Seshan…” Justice Khanna said.

Selection committee

However, the Bench was critical about the manner in which the details of candidates were given to Adhir Ranjan Chowdhury, the leader of the single largest party in the Opposition and a member of the high-level selection committee, merely hours before the Selection Committee was to meet.

“You could have been transparent. Just two hours to read 200 bio profiles? You should have been fair. Justice must not only be done, but seen to be done,” Justice Datta addressed Solicitor General Tushar Mehta, appearing for the Centre.

The two ECs were appointed on March 14. They took charge on March 15. The election schedule was announced on March 16.

The Centre said it would not have been “humanly possible” for Chief Election Commissioner Rajiv Kumar to steer the “world’s biggest electoral exercise” scheduled from April 19.

Appointment process

The government said the profiles of all the eligible persons were shared with Mr. Chowdhury on March 13. The government said the deliberations of the high-level committee were of a collaborative nature. The discussions took place in the actual meeting itself.

The government said the 2023 law has introduced a far more democratic, collaborative and inclusive appointment process than what had existed for the past 73 years.

“The 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. Likewise, the presence of senior government functionaries on the selection committee cannot in and of itself be a ground to automatically assume bias on behalf of the committee,” the government argued.