NEW DELHI: Gyanesh Kumar will take over as the 26th Chief Election Commissioner tomorrow – on a day the Supreme Court will hear a petition challenging the 2023 law under which his appointment was made by the Centre late on Monday night.
The appointment, which is the first under the new law, was made by a selection panel which included Prime Minister Narendra Modi, Union home minister Amit Shah and leader of opposition Rahul Gandhi. The Congress leader objected to the selection process citing tomorrow’s SC hearing and presented a dissenting note to the panel.
The Centre’s move triggered a war of words between the BJP and the Congress. While the Congress claimed that the midnight appointment by PM and HM was both “disrespectful and discourteous,” the BJP asserted that no rules were broken and accused the grand old party of acting like cry babies. The BJP also questioned the appointment of past ECs under the Congress regime and cited how they were rewarded by the grand old party.
So, why is the new appointment process under judicial scrutiny?
On March 2, 2023, a five-judge SC bench had directed that a panel comprising the PM, leader of opposition (LoP) and Chief Justice of India would advise the President on appointment of CEC and election commissioners. SC had said its order would hold good until the Centre came up with a law to lay down a mechanism for the selection.
The apex court’s verdict also held that leaving the appointment of the ECs and CEC in the hands of the executive would be detrimental to the health of the country’s democracy and the holding of free and fair elections.
After the SC verdict, the Centre notified a new legislation for appointment of CEC and ECs in August 2023 and Parliament passed the Bill in December 2023. Under the Centre’s new law the CJI in selection panel was replaced with a Union minister alongside the PM and LoP.
This effectively made the Election Commission appointments at the discretion of the government and hence was challenged in the apex court. The petitioners contended that the Election Commission should be insulated from “political” and “executive interference” for maintaining a healthy democracy.
What did Rahul say in his dissent note
In his dissent note presented before the selection panel, Rahul Gandhi cited the speech of B R Ambedkar while speaking in the Constituent Assembly in June 1949 to discuss the setting up of an independent Election Commission, where he had warned about executive interference in India’s democracy and the affairs of the Election Commission.
The Congress leader said the SC March 2, 2023 verdict reflected the larger concern among hundreds of millions of voters over the integrity of our electoral process. This is also reflected in public surveys that show a continuing decline in trust of voters in India’s election process and its institutions.
He further claimed that the government’s legislation bypassed the spirit and the letter of the Supreme Court’s order. Citing the hearing in apex court, he urged that the process of choosing the next CEC be deferred and the meeting be postponed.
The Congress said that by removing the chief justice of India from the selection committee, the government has made it clear it wants control and not to preserve the credibility of the Election Commission.
‘Congress acting like cry baby’
The BJP dismissed Rahul Gandhi’s criticism as “politically motivated” and accused him of undermining an elected government’s constitutional mandate through “malicious” judicial activism. BJP’s IT department head Amit Malviya said Rahul’s dissent on the appointment of the chief election commissioner (CEC) is not just politically motivated but also lacks merit. He also accused the Congress of conveniently misreading and misinterpreting the Supreme Court’s judgment on the CEC’s appointment.
Attacking the Congress, he said the party and the Gandhis, in particular, should be the last to sermonise on the appointment of the CEC, given their record of “abusing the office, appointing pliant candidates, and later doling out political appointments to incumbents as a reward for their services after stepping down”. The BJP leader also shared a list of several former CECs who were later given different positions or honoured with Padma awards by the then government.
BJP leader and Union education minister Dharmendra Pradhan also attacked Rahul and said “Congress Party crushed the Constitution at their convenience to serve their political interests. Congress never left an opportunity to ridicule and insult Baba Saheb Ambedkar, yet the Yuvraj of Congress has the audacity to take a grandstand on upholding Baba Saheb’s ideals and that of our founding leaders.”
“This latest jig by @RahulGandhi is another attempt to create controversy and peddle propaganda on the appointment of CEC. Has Rahul Gandhi forgotten how ECs were appointed during Congress rule? Despite being in power for decades why did Congress govt do nothing to reform the selection mechanism?” he asked.
The education minister further stated, “As a matter of fact, this is the first time that CEC has been appointed by a law passed in the Parliament. It is our govt. that has created a joint system for the appointment of CEC and EC, which includes the LoP. It is a great misfortune that Rahul Gandhi and Congress Party are acting like cry babies even when no rule/law is broken”.
SC hearing tomorrow
It will be interesting to see what is the Supreme Court’s take on the issue when a bench of Justices Surya Kant and N Kotiswar Singh hears the petitions against the Centre’s amended law. The apex court had in January this year said that examining the validity of the 2023 law would boil down to a contest between Parliament’s power to legislate on the selection framework and SC’s power as a constitutional court.
On March 15, 2024, the top court had refused to stay the appointments of the new ECs under the 2023 law.
On February 12 this year, the top court had fixed February 19 to hear pleas against the appointment of the CEC and EC under the 2023 law saying if anything happens in the interregnum, the consequences were bound to follow.
It had said the issue would be decided on merit.
(With inputs from agencies)