A fait accompli on EC appointments

The apex court noted govt’s undue haste in making the appointments when the matter was sub judice.

The Supreme Court has dismissed the petitions against the appointment of two Elections Commissioners, done in haste last week, but observed that the government’s action was “unnecessary and avoidable.” The government had presented a fait accompli to the court and even the court was aware of it. The new Election Commissioners, Gyanesh Kumar and Sukhbir Singh Sandhu, were appointed on March 14, a day before the court was to hear petitions related to the appointment. The court pointed out that it would have been appropriate for the government to have deferred the meeting to appoint the ECs when the matter was sub judice. But it did not take the matter any further than these observations, and has validated the appointments. The appointments were made under the 2023 law on appointment of members of the Election Commission, enacted after a Supreme Court judgement had proposed the setting up of a selection committee with the Chief Justice of India (CJI) as a member. 

The court said that it “cannot stay the legislation now and this will only lead to chaos and uncertainty.” That shows the government’s move to pre-empt any court action in the matter actually succeeded. The observation that the selection committee members should have been given more time is not relevant because the government’s haste has not affected the validity of its action, according to the court. The question whether the court could have foreseen this may be relevant but is not substantive because the court has also validated the process of the appointment. It said the law enacted by the government cannot be presumed to be wrong because “there are no allegations against the persons who have been appointed.” But the eligibility and suitability of the persons shortlisted for the position was not the issue. It was the decisive role that the executive had in the selection committee that was brought to the attention of the court. 

The court dwelt on the government’s undue hurry, but is yet to give a detailed order on the reasons for its refusal to stay the appointments. It has said that “elections are round the corner and the balance of convenience is important.” But at the same time, it pointed out in the context of the government’s haste that “justice must not only be done, but it must be seen to be done.” This should be equally applicable in the matter of the selection procedure also. It was to make the procedure seen to be fair and just that the court had itself indicated its preference for the inclusion of the CJI in the selection panel. The government instead went in for a committee in which it, and specifically the Prime Minister, has full sway and the final say. This will remain a flaw in the law and the procedure it has prescribed.