Achi news desk-
New Delhi4 days ago
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The Supreme Court has given assurances to investigate the main petitions challenging the law.
The Supreme Court on Thursday dismissed a petition seeking to stay the appointment of two new election commissioners, Gyanesh Kumar and Sukhbir Singh Sandhu. The court said that the 2023 ruling does not say that there should be a judicial member in the selection panel for the appointment of election commissioners.
A bench of Justice Dipankar Dutta and Justice Sanjeev Khanna said that the Election Commissioners Appointment Act 2023 cannot be sustained at this stage, as it will lead to chaos. There are no allegations against the new electoral commissioners either. However, the court has given assurances to investigate the main petitions challenging the law.
The bench asked the Central Government why the selection panel was not given time to consider the names of the candidates. The court has requested a response from the government within 6 weeks to the petitions challenging the constitutional validity of Act 2023. The next hearing of the case will be on August 5.
The central government filed an affidavit on March 20
Earlier, the Central Government had filed an affidavit on Wednesday 20 March. The government had said that the argument that any constitutional institution will have independence only when a judicial member is included in the selection panel is wrong. The Electoral Commission is an independent organisation.
The petition was filed by Congress worker Jaya Thakur and NGO Asian Democratic Reforms (ADR). During the hearing on January 12, the Supreme Court had issued a notice to the Central Government and asked for its reply. According to the new law, after the resignation of former Election Commissioner Arun Goyal and the retirement of Anup Pandey, two new Election Commissioners have been appointed on March 14.
The court said – the 2023 decision was until the law is made
During the hearing, the court said that nowhere in the decision 2023 of the Constitutional Bench, in the new law, it was necessary to have a member of the judiciary in the selection panel for the appointment of election commissioners. In the decision, there was a proposal to form a selection panel, which should include the Prime Minister, the Leader of the Opposition and the CJI.
The bench also said that this proposal was only until Parliament made a law. The purpose of the decision was to stimulate the Senedd to legislate as there was a gap. However, it did not specify what kind of law should be made.
New Election Commissioners Gyanesh Kumar and Sukhbir Sandhu with CEC Rajeev Kumar.
Courtroom LIVE…
Prashant Bhushan- The search committee shortlisted 6 names. The selection committee meeting was held on 14 March. He knew we were going to come to court on March 15. The leader of the opposition says he gave me the names 10 minutes ago. Earlier 200 names were sent. All this was done to make our petition meaningless.
Justice Khanna- Do you see why we didn’t stop earlier? Because from the beginning of this court until the decision, the President was making appointments. The process was working.
Prashant Bhushan- Anup Baranwal has said that if the Election Commissioner was appointed by the executive committee, then it is a serious danger.
Supreme Court – The Electoral Commission must be independent and impartial. What had the Constitution decided before this law?
Prashant Bhushan- There was an emptiness. The Constituent Assembly expected it to be filled by an independent panel and not one dominated by the executive.
Justice Dutta- Suppose Anoop Baranwal is not there and Parliament brings this law, then what will be the basis of the challenge?
Prashant Bhushan- However, freedom will continue to be the basis of this challenge.
Justice Khanna- The decision was given because there was a void due to the absence of any law. The decision placed emphasis on legislation. We cannot ban the law without considering its constitution. Now that they have been appointed, and that elections are around the corner, the balance must be considered, because there are no allegations against the appointed persons.
Prashant Bhushan- I am not saying that elections should be held with one commissioner. Let them work until their replacements arrive.
Supreme Court – Nowhere in the decision of the Constitution Bench has it been said who should be the members of the selection committee. You cannot say that the Electoral Commission is secondary to the executive. We will investigate, but at this time we cannot outlaw the law.
Prashant Bhushan- The court has already banned many laws.
Supreme Court – He was the exception. It is not so easy here.
Advocate Sankaranarayanan- In paragraph 301 of the decision, the court said that the law will be different, whatever law is made. This is the explanation of Article 324. They could only get rid of it by amending the Constitution.
Supreme Court – The judgment stated that there was a vacancy. The court never said that we invite Parliament to make laws in a particular way.
Advocate Sankaranarayanan- At least ban section 7 as they will continue to make appointments.
Advocate Vikas Singh- It is not necessary for the third person to be the CJI, but a reliable person like the CJI should have been brought. Elections are near, democracy is at risk. The CJI can form a committee to scrutinize the appointments.
Advocate Sanjay Parikh- There is an empty space and it needs to be filled. The Senedd will have to do this. But the whole exercise of the bench was to see how democracy could be saved. The ruling referred to “removing the exclusive power of the executive”. CJI should be free to give suggestions. Failure to do so will destroy the democratic process.
SG Tushar Mehta- The process of appointing the Election Commissioner began in February. Immediately after the Act came into force.
Supreme Court– It has 2 aspects – firstly the Act and its constitutional validity, secondly – the procedure adopted. The process is a different matter, but you had to give the names a chance to scrutinize.
SG Mehta- All of the 200 names go to all committee members. They say we have sped up the process. This process started in February. Then we only had 2 people.
Supreme Court – You work a little slowly. The search committee had to become operational first. There was a meeting on March 15 to choose one, but you held a meeting on March 14 to choose the other?
Justice Dutta- There are 5 names for 1 post. For 2 you only sent 6, why not 10? This is what is known from the records of the Electoral Commission. They may consider 200 names, but how much time is given? maybe 2 hours? How will 200 names be considered in 2 hours? You had to maintain transparency.
SG Mehta- If a committee of judges appoints someone from a group of registrars, they already know the members. The same applies to the members of the commission. They know people.
Justice Dutta- But not only should justice be done, but justice should also be seen to be done. Why should there be any scope left for the public to raise questions?
Justice Khanna- The way the appointment was made, this could have been avoided. The case was going on in court. The selection committee person had also said that he needed some time. We refuse the application to suspend the appointment of election commissioners, giving reasons.
Election commissioner appointment process…
The law for the appointment of CEC and EC has changed on 29 December 2023 itself. According to this, the search committee which includes the Minister of Law and two Union Secretaries will compile a short list of 5 names and give them to the selection committee. A three member committee comprising the Prime Minister, one of the Union ministers and the leader of the opposition or the leader of the largest opposition will decide on a name. The appointment is made after the approval of the President.
The opposition had presented opposition to the new law
The opposition parties said that the government is weakening the Supreme Court by bringing the bill against the constitution’s bench order. Earlier, the Supreme Court had said in an order in March 2023 that the President should appoint the CEC on the advice of the Prime Minister, the Chief Justice of India and the Leader of the Opposition.
Allegation in the petition – This law violates the decision of the Supreme Court
Jaya Thakur claimed in her petition that Sections 7 and 8 are against the principle of free and fair elections as it does not provide for a free system for the appointment of all the members of the Election Commission.
This law was made to reverse the Supreme Court’s March 2023 decision, which had removed the Centre’s powers to unilaterally appoint the CEC-EC. This is a tradition that has been going on since independence.
How many commissioners can there be in the Electoral Commission?
There is no number specified in the Constitution regarding the number of Electoral Commissioners. Article 324(2) of the Constitution states that the Electoral Commission may include the Chief Election Commissioner and other Election Commissioners. It depends on the President what their number will be. After independence, there was only a Chief Electoral Commissioner in the country’s Election Commission.
On 16 October 1989, Prime Minister Rajiv Gandhi’s government appointed two more Election Commissioners. This made the Election Commission a multi-member body. These appointments were made before the 9th general election. At that time, it was said that this was done to harm Chief Election Commissioner RVS Perry Shastri.
On January 2, 1990, the VP Singh government amended the rules and made the Election Commission a single member body again. On October 1, 1993, the PV Narasimha Rao government again approved the appointment of two more Election Commissioners by ordinance. Since then the Election Commission consists of two Election Commissioners together with the Chief Election Commissioner.
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