The Supreme Court on Friday refused to stay the appointments of new election commissioners (ECs) under a 2023 law that excluded the chief justice of India from the selection panel.
A bench of justices Sanjiv Khanna, Dipankar Datta and Augustine George Masih told the petitioners, who pointed out that a meeting for the selection of ECs was pre-poned, to file a separate application pointing out the fact.
Refusing to stay the appointments made in accordance with the 2023 law, the bench said, "Normally and generally, we do not stay a law by way of an interim order."
A bench of justices Sanjiv Khanna, Dipankar Datta and Augustine George Masih told the petitioners, who pointed out that a meeting for the selection of ECs was pre-poned, to file a separate application pointing out the fact.
Refusing to stay the appointments made in accordance with the 2023 law, the bench said, "Normally and generally, we do not stay a law by way of an interim order."
It deferred till March 21 the hearing on a batch of pleas challenging the appointments of two ECs under the 2023 law.
Senior advocate Vikas Singh, who appeared in the court on behalf of petitioner Jaya Thakur, said when a judgment has been passed, there cannot be any transgression.
He contended that there was a clear-cut transgression in the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
Singh read out a March 2, 2023 verdict of the apex court, in which a panel comprising the prime minister, the leader of opposition and the CJI was constituted for the appointment of ECs and the chief election commissioner (CEC).
Justice Khanna asked Singh to read the direction given in the verdict and said it was held that the three-member panel will operate till Parliament comes up with a law on the issue.
Singh said the court had earlier stayed ordinances where there were transgressions of its verdicts.
The bench then asked Singh to file a fresh application (regarding the appointment of ECs) and said the court will hear the matter on March 21, along with other petitions that have challenged the 2023 law.
Advocate Prashant Bhushan appeared in the court on behalf of NGO Association for Democratic Reforms (ADR), which has challenged the CJI's exclusion from the panel contending that the Election Commission should be insulated from 'political' and 'executive interference' for maintaining a healthy democracy.
The hearing assumes significance as former Indian Administrative Service (IAS) officers Gyanesh Kumar and Sukhbir Sandhu were appointed as ECs on Thursday. They were selected by a panel chaired by Prime Minister Narendra Modi.
The two vacancies had arisen in the Election Commission after the retirement of Anup Chandra Pandey on February 14 and sudden resignation of Arun Goel.
The NGO has challenged the validity and sought a stay on the operation of section 7 of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which excludes the CJI from the panel that picks the CEC and ECs.
Under the new law, the selection panel has the prime minister as the chairperson, and the leader of opposition and a Union minister nominated by the prime minister are the two other members.
The NGO moved the top court after Goel put in his papers recently.
The NGO further said the March 2, 2023 judgment of the top court had held that leaving the appointment of the ECs and CEC in the hands of the executive would be seriously detrimental to the health of the country's democracy and the holding of free and fair elections.
"We declare that as far as appointments to the posts of chief election commissioner and election commissioners are concerned, the same shall be done by the president of India on the basis of the advice tendered by a committee consisting of the prime minister of India, the leader of opposition in the Lok Sabha and, in case there is no such leader, the leader of the largest party in the opposition in the Lok Sabha and the chief justice of India," a five-judge constitution bench had ruled on March 2 last year.
"This norm will continue to hold good till a law is made by Parliament," it had said.
The ADR's plea has alleged that the verdict was overruled by the Centre without removing its basis.
"In December 2023, Parliament, in the absence of the opposition as well as a substantive debate and discussion, passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. This law came into effect from 2nd January, 2024," it has said.
"It is pertinent to mention that the chief justice of India has been removed and a cabinet minister (to be nominated by the prime minister) has been added, thereby restoring the previous law i.e. selection by executive, thereby undermining the rule of law and threatening democracy," it has said.
The composition of the selection committee under the new law amounts to excessive interference of the executive in the appointment of the ECs and CEC and is detrimental to the independence of the poll panel, it has said.
Recently, another plea was filed by Thakur, a Congress leader from Madhya Pradesh, seeking to restrain the Centre from appointing new ECs in accordance with the 2023 law. Thakur has also challenged the provisions of the 2023 law.
