NEW DELHI: The Supreme Court on Thursday rejected pleas for a stay on appointment of Election Commissioners Gyanesh Kumar and Sukhbir S Sandhu and declined to order fresh selections by a panel inclusive of the CJI as that would amount to tinkering with existing statutory framework, saying it was a sure shot recipe for creating chaos and uncertainties ahead of general elections.
Though a bench of Justices Sanjiv Khanna and Dipankar Datta didn’t cast doubt on the appointees’ credentials, it was overtly critical of the speed with which the appointments were carried out.
The search committee shortlisted six names on March 14 and, hours later, the selection panel comprising PM, home minister and leader of largest opposition party in Lok Sabha picked the two as ECs, by a two-to-one majority.
“We are not on the credentials of those selected. Even the petitioners have not questioned their credentials. But we are (commenting) on the process of selection. Our concern is the way the selection was carried out. It could have been avoided. The government knew the matter was sub-judice. It could have deferred the selection for some time,” the bench said.

It said the search committee, which shortlisted six out of around 200 names, could have completed the task 10 days before the selection committee met. “Members of the selection committee should have had the opportunity to be apprised fully about credentials of those in the zone of consideration. Views of every member is important when appointment is made to important constitutional posts having a bearing on elections and democracy,” Justice Khanna said.
“Why only six names were shortlisted? When under the law the search committee is to provide a panel of five names for each vacancy in EC post, it should have given 10 names for two vacant posts. When the leader of the opposition party is seeking more time, you cannot say that all members of the selection committee got the names simultaneously. Even if all the 200 names were given earlier, it would take time to consider their credentials. The process could have been more transparent,” Justice Datta said.
Except for these critical observations, the bench was fully with solicitor general Tushar Mehta that any interference by the court at this juncture would be unwarranted. The bench rebuffed lead counsel Prashant Bhushan’s argument that to maintain EC’s independence and for free and fair polls, the selection panel should have included CJI as a member as mandated by the SC in its Baranwal judgment last year.

The bench said for the last 73 years, “ECs have been appointed by the government alone and we have had excellent ECs and free and fair elections. SC in Baranwal judgment had filled a legislative vacuum. Once Parliament enacted the law and provided the mechanism and composition of the selection committee, can we direct Parliament to change the composition to include CJI in it? The SC cannot insist on the CJI’s inclusion in the selection panel.”
It said it will later examine the validity of the ‘CEC & other ECs (Appointment, Conditions of Service and Terms of Office) Act’, which came into force from Jan 2. Bhushan said SC had quashed the National Judicial Appointments Commission Act, unanimously passed by Parliament, as it found that inclusion of executive in the judge selection process would undermine judiciary’s independence. The same scrutiny must be applied to the new law on appointment of CEC and ECs, he said.
Bench rejected it saying the procedures for appointment of constitutional court judges and ECs are different, even though it is undeniable that both are vital for democracy. When Bhushan said the decision of the selection committee be made valid only when it is unanimous. The bench said, “Even if we include CJI as a member, can we ensure that the decision would be unanimous?”

Bhushan said when the executive representatives dominate the selection panel, the EC would be under the thumb of the govt. The bench deprecated the arguments and said, “In the past, we had excellent CEC and ECs, appointed solely by the government. How can you make such a statement,” it asked.
SC said once Parliament passes a law, the tradition in judiciary is to assume its constitutional validity on the same lines as an accused is presumed innocent till pronounced guilty. SC asked the Centre to file its response to the petitions challenging the validity of the new law on appointment of CEC and ECs in six weeks and posted the matter for hearing on August 5, much after the general elections.