In choosing election commissioners, has PM Modi pre-empted the SC?

The Union government is either confident that the Supreme Court will not ‘stay’ a contentious law (The Chief Election Commissioner and other Election Commissioners [Appointment, Conditions of Office and Terms of Office] Bill 2023) under challenge ahead of the impending general elections, or it wanted a fait accompli to pre-empt the hearing in the Supreme Court on Friday, 15 March.

The three-member selection committee on today recommended retired IAS officers Gyanesh Kumar and S.S. Sandhu to fill the two vacancies caused by the retirement of election commissioners Anoop Chandra Pandey on 15 February and the mysterious resignation of Arun Goel on 8 March.

Kumar, an officer from the Kerala cadre, has worked in the ministry of home affairs (MHA) and the ministry of cooperation, both under Amit Shah, and is said to have played a key role in the abrogation of Article 370. Sandhu, from the Uttarakhand cadre, was appointed chief secretary by chief minister Pushkar Singh Dhami and has earlier served as chairman of the National Highway Authority of India.

The word ‘committee’ is deceptive because under the new law, the Constitutionality of which is under challenge in the Supreme Court, it is the prime minister’s wish that is designed to prevail. With the second member of the committee being a Central minister nominated by the PM, it is only one individual who gets to actually select the election commissioners.

The third member of the committee, leader of the Opposition or the largest party in the Lok Sabha, is an ornamental or cosmetic addition who cannot make any difference. The farcical arrangement was borne out by Adhir Ranjan Chowdhury’s claim that the government had sent him a list of 212 officers on Wednesday when he demanded the list of shortlisted candidates.

While reports speak of five officers shortlisted by a committee of senior bureaucrats headed by Union law minister Arjun Meghwal, why send as many as 212 names to the leader of the largest party in the Lok Sabha less than 24 hours before the selection panel was due to meet?

Sources said the government had sent Chowdhury five lists containing 236 names. The exhaustive list included the names of 92 officers who retired as secretary or secretary-equivalent to the government of India, 93 names of officers serving as secretary and secretary-equivalent to the government of India, 15 officers who retired as chief secretaries of states and Union territories in the last one year, and 28 and 8 officers serving as chief secretaries in states and Union Territories respectively.

This farcical new law enacted by Parliament in November was challenged in the Supreme Court in January itself, but the apex court had refused to urgently hear the petition or grant a stay. The Association for Democratic reforms (ADR) once again approached the court after the dramatic and mysterious resignation of Goel, expressing apprehension that the Union government would try to take advantage of the new law.

ADR’s apprehension has turned out to be correct. But the government seems confident that the Supreme Court will point out that the deed is done, that the petition is now infructuous and say the court is not inclined to interfere at this stage. The merits of the law can be discussed in future hearings and, like the challenges to the electoral bonds, perhaps the case can be decided six years later?

Propriety demanded that the selection committee wait for the Supreme Court to weigh in first. The committee could well have met 24 hours later on the evening of Friday, 15 March. But then, the government’s intentions were clearly suspect from the beginning.

The new amendment to the law, argued ADR, is unconstitutional and undermines the independence of the Election Commission of India (ECI). The law is against the letter and spirit of the Supreme Court judgment of March 2023, which specifically pointed to Parliament's obligation to enact a law that maintains the ECI's independence. Just as teams and players are not allowed to choose the referee, no political party or government can be allowed to exercise control over the ECI.

By not hearing the challenge early, the Supreme Court may have lost another opportunity to reform the ECI. All eyes, however, will be on the Supreme Court tomorrow.