The Supreme Court”s on Tuesday yet again declined to stay the implementation of a controversial new law governing the appointment of election commissioners. However, the court has incorporated the petition into its roster of pending cases on this matter and set a hearing date for April, just days before the 2024 Lok Sabha elections. The top court also served notice to the Centre requesting a response.
The latest petition challenging the law comes from the Association for Democratic Reforms (ADR), an NGO working on electoral and political reforms in the country. During the hearing, Advocate on Record Prashant Bhushan, representing ADR, argued for a stay on the law, highlighting the imminent retirement of one of the election commissioners, Anup Chandra Pandey.
Bhushan emphasised the critical importance of revising the law, particularly the section mandating appointments based on the recommendation of a three-member committee chaired by the Prime Minister, rather than the Chief Justice of India. He contended that failure to address this issue renders the petition ineffective.
However, Justices Sanjeev Khanna and Dipankar Gupta, rebuffed the plea for interim relief, asserting that matters of constitutional validity remain pertinent and never become obsolete.
“Sorry, we cannot grant you interim relief. Matter of constitutional validity never becomes infructuous. We know our parameters for granting interim relief,” the two-judge bench told Bhushan.
The new law states: “Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of – (a) the Prime Minister – Chairperson; (b) the Leader of Opposition in the House of the People – Member; (c) a Union Cabinet Minister to be nominated by the Prime Minister – Member.”
The ADR plea said the law was enacted in 2023 in order to fill the vacuum under Article 324(2) of the Constitution of India. “However, the impugned section restores the earlier position of law i.e. appointment of Chief Election Commissioner and Election Commissioner would be done solely by the executive. The selection committee is dominated by the members from executive i.e. Prime Minister and Union Cabinet Minister to be nominated by the Prime Minister,” it said.
The top court had earlier refused to stay the law following a petition filed by Congress” Jaya Thakur. However, the court expressed readiness to scrutinise the law”s efficacy and issued notices to both the central government and the Election Commission.
Critics argue that the law grants Prime Minister Narendra Modi and his party, the BJP, undue influence over the appointment of Election Commissioners, potentially compromising the independence of the Election Commission of India. Suggestions have been made to include the Chief Justice of India in the appointment process to mitigate potential conflicts of interest arising from the involvement of politicians in the selection panel.
It”s worth noting that the court had initially stipulated the Chief Justice”s inclusion as the third member of the selection panel in a ruling made in March the previous year. However, this decision was later overturned with the passage of a bill by the Lok Sabha, replacing the Chief Justice with a member of the union cabinet nominated by the Prime Minister. This move drew criticism from opposition leaders, who argued that it jeopardised the autonomy of the poll panel.
The ADR”s plea challenges the law enacted in 2023, asserting that it reinstates executive control over the appointment of election commissioners, contrary to the principles outlined in Article 324(2) of the Constitution of India. The organization contends that the dominance of executive members in the selection committee undermines the impartiality of the appointment process.
