Wish judges appointed as speedily as ECs, says Supreme Court

NEW DELHI: The appointment of Gyanesh Kumar (now CEC) and S S Sandhu as election commissioners in 2023 — who were shortlisted, cleared and appointed within a day — was the focus of a hearing on Thursday in Supreme Court, which “wished” that govt show the same urgency in appointment of judges. Kumar and Sandhu’s appointments were the first under the new law — CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 — by a panel of PM, a Union Cabinet minister and the LoP, the validity of which is being examined by SC.

Emphasising EC’s independence is as important as the independence of the judiciary, petitioners contended before a bench of Justices Dipankar Datta and Satish Chandra Sharma that the executive and govt shouldn’t have a dominant say in the poll panel’s postings, as it would result in appointment of a “yes man”, severely affecting EC’s impartiality, which is the bedrock of the republic and democracy. Senior advocate Vijay Hansaria, for petitioner Jaya Thakur, told the bench that Kumar and Sandhu were appointed without holding effective consultation.



He said names were not shortlisted till March 13, 2023, and the LoP was given a list of 200 names, which were being considered, but the selection committee met and selected them out of six names the very next day. “This is what happens when you give absolute power to one individual. How can LoP be expected to look into so many names in a day?” he said.

Responding to his submission, the bench said, “We can only say that we wish such speed is shown in the appointment of judges. Especially HC judges.” It, however, refused to give credence to Hansaria’s allegation that they were appointed just a day before SC’s hearing on March 15 to frustrate court proceedings, as no proof was placed to substantiate the allegation.

Senior advocates Sanjay Parikh, Shadan Farasat and Prashant Bhushan, appearing for the other petitioners, contended that the law was passed by Parliament without proper discussion and 141 MPs from the opposition were under suspension when it was passed. They said the law was brought to undo SC’s verdict by which independence was infused in the appointment process of CEC and election commissioners. The 2023 SC verdict had held that appointments were to be done by a panel of PM, leader of the opposition (LoP) and CJI, but under the new law, CJI was replaced by a Union cabinet minister in the committee.

Bhushan submitted that every political party in office tried to use the commission for political gains and that is the reason a political party, while being in opposition, shouted to make the poll panel free from govt interference, but it refrained from taking decisions when it came to office.

He said the law was framed for appointment only after SC intervened in 2023. Without naming former law minister Arun Jaitely, who had once coined the term “tyranny of the unelected” for judiciary over its activism and interference in policy matters, Justice Datta said, “I am reminded of a parliamentarian saying tyranny of the unelected. This should be equated with tyranny of the elected.”

“Whoever comes to office is doing the same thing. It is unfortunate for the country. I saw a video of BBC on Dr Ambedkar. Within three years of framing of the Constitution, he had said that democracy is not working in this country,” the bench said.