‘Would be good if govt appointed SC judges as quickly as ECs’: Supreme Court

“Election commissioners ar considered at par with sublime margaret court book of judges,” a two-judge bench of the apex of the sun's way court said Thursday, bantering that it would be good if the government cleared the appointments of Supreme Court judges as speedily as it appointed election commisioners.The observation came when the court was hearing a clutch of petitions challenging the CEC and EC (Appointment, Conditions of Service and Term of Office) Act, 2023, after senior advocate Vijay Hansaria appearing for a petitioner, Congress leader Jaya Thakur, stated that the top court had in March 2024 declined to stay the law when two election commissioners, Gyanesh Kumar (present CEC) and Sukhbir Singh Sandhu, had to be appointed. He showed how the search committee shortlisted six names, the selection committee cleared the two names, and the presidential order appointing them was issued -- all in a day on March 14, 2024.The top court was told in the course of the hearing that the present law was brought after the Supreme Court in the Anoop Baranwal judgment (2023) directed that a selection committee comprising the Prime Minister, Chief Justice of India and Leader of the Opposition in the Lok Sabha would appoint all future CEC and ECs, but with the caveat that the judgment would operate till Parliament enacts a law.“What happened before Anoop Baranwal judgment? Why did Parliament not make a law,” a bench of justices Dipankar Datta and SC Sharma asked advocate Prashant Bhushan appearing for another petitioner—Association for Democratic Rights (ADR). Bhushan said that the drafters of the Constitution allowed Parliament to enact a law under Article 324 of the Constitution but for 73 years, no law was brought and the court had to step in to fill this legal vacuum. He cited Parliament debates to show how parties in Opposition demanded enactment of a law but chose not to do it on assuming power.“Whoever comes to power is doing the same thing. It is most unfortunate for the country,” said the bench.Justice Datta remarked, “I am reminded of what a Parliamentarian said ... “tyranny of the unelected”. This should be equated with tyranny of the elected.” The other judge interjected: “Tyranny of the majority.”Referring to the present law, Bhushan said, “This law brings back the same position that existed prior to the 2023 judgment.” The selection committee provided under the law is headed by the PM and comprises the Leader of the Opposition in the Lok Sabha and a cabinet minister.“Despite dissent by the Leader of Opposition, appointments are made. You cannot make a law which brings the same defect which this court underlined, i.e., preserving independence of the Election Commission from executive control,” Bhushan argued, adding that the Baranwal case asserted that independence of the poll panel begins at the stage of appointment.And Hansaria also told the court that the chain of events regarding the appointments of Kumar and Sandhu came a day before the bench heard arguments on staying the law. However, the bench did not consider this submission as nothing was on record to attribute any motive to the government.All petitions have sought to declare the law unconstitutional and have asked the court to suggest some mechanism to ensure independence in CEC/EC appointments. The Centre has opposed the petitions and will be making submissions next week.