'How 6 Out Of 200 Shortlisted In Few Hours?' : Supreme Court Questions Centre Over Hurried Appointment Of New Election Commissioners

While refusing to stay the controversial Chief Election Commissioner and Other Election Commissioners Act, 2023, which removes the Chief Justice of India from the selection panel for appointing Election Commissioners, the Supreme Court today expressed that the Union government's latest appointment of two new ECs viz. Gyanesh Kumar and Sukhbir Singh Sandhu was in haste.

Posting the matter to August, the bench of Justices Sanjiv Khanna and Dipankar Datta said that it will examine the issues on merit at a subsequent stage, but in the interregnum, the Act - a legislation - could not be stayed. 

During the hearing, Advocate on Record Prashant Bhushan, appearing for petitioner-ADR, pointed to a letter dated March 12, 2024 written by the Leader of Opposition asking for the names of the shortlisted candidates. It was claimed that, "even on March 12, he (Leader of Opposition) was under the impression that the meeting for recommending appointments was for March 15".

While Solicitor General Tushar Mehta attempted to counter petitioner's averments, Justice Datta questioned the government's haste in appointing the two new ECs. The Judge asked Mehta as to how the list of 200 candidates was shortlisted to 6 in a matter of few hours,

"They can consider 200 names, but what is the time given? Maybe 2 hours? 200 names to be considered in 2 hours? You could have been more transparent".

Mehta replied that the members of Selection Committee were aware of the officials, who held offices across political party lines. To buttress his submission, he referred to the credentials of one of the newly appointed ECs.

Taking the focus off appointees' credentials, which were not the matter of dispute, Justice Datta highlighted that for one vacancy, the government gave 5 names, but for two vacancies, it sent only 6. "Why not 10?" he asked before adding, "this is the language of the statute - for one vacancy, 5 names have to be recommended".

Justice Khanna also remarked to Mehta: "You've not been careful...this could have been easily avoided by giving 2-3 days. These are constitutional appointments...Parliament has enacted a law, it also means that the person who is the member of the selection committee must have a fair share to understand the background of the persons and put across his viewpoint. That's important."

Adverting to other controversial aspects, Justice Datta asked Mehta the reason behind advancing of the process from March 15 to March 14. "For selecting 1, you keep on 15th...for selecting 2, you advance to 14th?"

Justice Khanna raised further concern, saying that the matter was sub-judice before the Court yet the government went through with the process. When Mehta said that there was no interlocutory application pending at the relevant time, the Judge stated that the matter had been mentioned before the Court. Justice Khanna also underlined that in appointments of this nature, every member of selection committee should have opportunity to examine, as "there views are equally important". He added that the government should have undertaken the exercise more slowly, and activated the search committee earlier.

Datta J could emphatically highlight that the matter pertained to the Representation of Peoples Act which in his opinion was "the highest" after the Constitution. Referring to the aspersions cast by a portion of the populace on the appointment process, he quoted the principle that "justice must not only be done, but also be seen to be done".

Considering the chaos or the fall out that may follow if the 2023 law was interfered with as an interim measure, when elections are just around the corner, the Bench passed its order dismissing the stay applications.

The Court also noted that the competence and eligibility of the new appointees are not otherwise questioned. 

The Centre said in its affidavit that on March 9, after accepting Arun Goel's resignation, a decision was taken to advance the selection committee meeting scheduled on March 15 to March 14. The meeting of March 15 was originally scheduled to appoint a replacement for a retired EC. After Goel's resignation, the meeting was changed to March 14 to select two ECs. The Centre denied the petitioner's allegation that the meeting was kept on March 14 to preempt any judicial order being passed on March 15, when the Court was to hear applications to stay the law.

According to the new law, the Selection Committee shall comprise the Prime Minister, Cabinet Minister, and Leader of the Opposition in the Lok Sabha.

Case Title: Dr Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024 and connected matters

Citation : 2024 LiveLaw (SC) 254

Click here to read the order