Defending the appointment of two new election commissioners (ECs) by a high-level selection panel that excluded the Chief Justice of India, the Centre on Wednesday said the independence of the poll body does not arise from the presence of a member of the judiciary in the selection committee and the pleas just seek to stir up a political controversy on “bare, unsupported and pernicious statements”.
The affidavit filed by the Legislative Department of the Ministry of Law and Justice before the Supreme Court, refuted the petitioners’ claims of executive overreach and encroachment on the Election Commission’s autonomy.
Retired IAS officers Gyanesh Kumar and Sukhbir Singh Sandhu were appointed as the two ECs last week under the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023.
The affidavit was in response to a batch of pleas, including those by Congress leader Jaya Thakur and the Association for Democratic Reforms, challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023.
“To indicate, as the petitioners suggest, that selection committees without judicial members, would invariably be biased is wholly incorrect. It is submitted that such an argument would read an implied limitation into the otherwise plenary power of Article 324(2), which is impermissible.
“The Election Commissioners have been able to function neutrally and effectively even during the era of full executive discretion in appointment.
“As a high constitutional office, the Chief Election Commissioner enjoys protection that are in-built into the Constitution, and which enable them to act impartially,” it said, adding that the allegations of disingenuous motive and premeditation on the part of the Government are wholly without basis.
The Ministry of Law and Justice pointed out that even before the enactment of the CEC Act, for 73 years from 1950 till 2023, the appointment of the Election Commissioners was being made by the executive exclusively. The Centre also argued that the deliberations of the high level committee under CEC Act which preceded the appointment of these officers, were collaborative.
“It is submitted that the case of the petitioners is premised on one fundamental fallacy that the independence can only be maintained in any authority when the selection committee is of a particular formulation. It must be noted that the independence of the Election Commission, or any other organisation or authority, does not arise from and is not attributable to the presence of a judicial member in the selection committee,” the affidavit said.
Refuting the petitioners’ claim that no list of probable appointees was shared with the Opposition, the Centre submitted that the names of short-listed persons were made available to Leader of the Opposition in the Lok Sabha Adhir Ranjan Chowdhury on March 13, 2024, after the Search Committee had finalised six names for recommendation.
“No objection whatsoever has been raised about the fitness eligibility or competence of any of the persons named in the list to serve as Election Commissioner. There are no allegations against the Election Commissioners appointed are also made. Instead a political controversy is sought to be created only on the basis of bare, unsupported and pernicious statements about certain vague and unspecified motives behind the appointment,” the Central Government submitted.
“It is, therefore, wholly wrong, misleading and malicious to suggest that the third member of the Selection Committee was given the shortlisted names as an act of premeditation on the mind of the two members of the Executive as all the members received the list simultaneously. Furthermore, the list of dates clearly brings out the fact that profiles of all eligible persons were shared with the leader of the single largest Opposition party in the Lok Saba on March 13, 2024.
“It may be noted that the persons finally appointed were from the list so shared. This belies the claim of the petitioners that no list was shared in advance of the meeting,” the affidavit said.
The Centre contended that a political controversy has been sought to be created only on the basis of “bare, unsupported and pernicious” statements about certain vague and unspecified motives behind the appointment. It said the credentials of those finally appointed as election commissioners have at no point been called into question and no objection whatsoever has been raised about the fitness, eligibility or competence of any of the persons named in the list to serve as election commissioner.
“Where no question has been raised about the qualifications of candidates to hold a constitutional post nor has any material been brought on record to show that the candidates are unfit for office, no prima facie case can be said to have been made out. On that ground alone, the application for stay ought to be dismissed,” the affidavit said.
The two election officers were appointed in the wake of the March 9 resignation of Election Officer Arun Goel. Goel’s abrupt resignation had left only Chief Election Commissioner Rajiv Kumar on the ECI in the run-up to the upcoming Lok Sabha polls.