The Supreme Court on Thursday dismissed the interim applications seeking stay on appointment of the two new election commissioners while the matter was sub-judice. However the top court orally remarked that the Centre could have been more transparent in carrying out the procedure of appointment of the two newly selected election commissioners.
The court has not dismissed the original writs against excluding the Chief Justice of India from the selection panel. However the court made an observation saying that the 2023 verdict of its constitution bench that the petitioners are citing has nowhere said there has to be a member from the judiciary in the selection panel for appointment of election commissioners in the new law.
The bench said that the intention of the 2023 judgment, which proposed a selection panel comprising the prime minister, the Leader of Opposition and the Chief Justice of India, was for a period till Parliament enacts a law. The verdict was intended to nudge Parliament to enact law as there was a vacuum and it didn't say what kind of law should be made, the court said.
Justice Sanjiv Khanna while hearing the Solicitor General Tushar Mehta appearing for Centre said that there are two aspects to the case at hand. First is the constitutional validity of the act for excluding the CJI from the selection panel. The court noted that it is difficult to pass any order for that for now.
On the second question which raises concern over the procedure adopted in appointing the two new election commissioners on March 14.
Justice Khanna said that the members of the selection panel should have been given an opportunity to examine the names which were given to them on March 14 itself on the day the appointment was announced.
"...the other party has some point in this contention,"Justice Khanna noted.
He said the Centre could have avoided this by giving them two-three days in advance to atleast study the profiles of the suggested members.
A bench comprising Justices Sanjiv Khanna and Dipankar Datta heard writ petitions challenging the constitutionality of various provisions of the Act and subsequent IAs filed after two positions in the election commission fell vacant.
Congress leader Jaya Thakur, the Association for Democratic Reforms, and others, have questioned the constitutionality of the Act's amendments, particularly the exclusion of the Chief Justice of India from the selection panel.
On Friday, the top court had heard the petitioners and asked Centre to file a response in the case.
Senior Counsel Vikas Singh, appearing for the petitioners in the case, argued that the two new ECs were appointed despite the validity of the law under challenge before the top court. Today, the petitioners raised the issue of procedure adopted by the Centre in appointing the two new election commissioners.
The bench headed by Sanjiv Khanna responded that it is something for the Centre to answer why they went ahead when the matter was pending before us.
The Centre in its reply to the Supreme Court in petitions seeking a stay on appointment of the Election Commissioners said that the pleas are politically motivated. While opposing the demand to cancel the appointment of Election Commissioners on grounds that the selection panel excluded the Chief Justice Of India the Centre told the Supreme Court that the qualification of the newly appointed Election Commissioners is not questioned and the plea is only filed for garnering political mileage.
The Centre further said that the argument that the ECI will be independent only when there are judges in the selection panel is faulty. In its response filed in the top court, the Centre said that deliberations of the high level committee under the CEC and EC Act, 2023, are collaborative and discussions took place at the actual meeting itself.
However, today the top court raised several critical questions on the procedure adopted by the Centre for appointment of the two new Election Commissioners.