Supreme Court Declines Stay on new Election Commission Appointment Process

New Delhi, March 21, 2024: The Supreme Court has opted not to stay the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (CEC Act), which outlines the procedure for appointing Chief Election Commissioners (CEC) and Election Commissioners (EC).

A bench comprising Justices Sanjiv Khanna and Dipankar Datta also refused to intervene in the appointment of two new Election Commissioners, Sukhbir Singh Sandhu and Gyanesh Kumar.

The bench highlighted that before the enactment of this law, appointments to the Election Commission were made by the executive, and questioning the independence of the poll body would not be appropriate.

"Appointment of Election Commissioners was done by the executive even before the enactment of this law, and such appointments have been upheld by this court in the past," Justice Khanna stated.

Advocate Prashant Bhushan, representing the petitioner Association for Democratic Reforms, argued against the appointment process, alleging a compromise of constitutional principles and undue influence from the executive.

However, the bench countered, stating that staying the law just before the upcoming Lok Sabha elections would create chaos and uncertainty. It emphasised that even the leader of the largest opposition party is a member of the selection committee, ensuring a balanced representation.

Solicitor General Tushar Mehta, representing the Central government, opposed the stay, emphasising that the selection process had begun well in advance and was not influenced by the filing of the application.

While the Court refused to grant a stay, it issued notice on the plea challenging the validity of the CEC Act, instructing the Central government to respond within six weeks.

The challenge pertains to concerns raised regarding the appointment process outlined in the CEC Act, which differs from the procedure recommended by the Supreme Court in its judgment in Anoop Baranwal v. Union of India and others.

The Act specifies a selection committee comprising the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition, instead of including the Chief Justice of India as recommended by the Court.

The petitioners argued that the new law could potentially undermine the independence of the Election Commission and allow the ruling government to dominate the selection panel.

Despite objections, the Court noted that the law was enacted to address the appointment process of Election Commissioners, emphasizing the need for judicial review under the existing legal framework.

The appointment of Dr Sukhbir Singh Sandhu and Gyanesh Kumar as Election Commissioners occurred amidst ongoing legal proceedings, prompting the petitioners to seek urgent intervention from the Court. However, the Court refrained from intervening in the appointment process, highlighting the importance of adhering to established legal procedures.