New Delhi The Union government told the Supreme Court on Wednesday that it was justified in appointing two new election commissioners (ECs) under a recently enacted statute because the new law envisions a “democratic, collaborative and inclusive” regime that cannot be faulted solely for not having a judge on the selection panel.

The Centre submitted its affidavit in the court a day before a pair of applications demanding a stay on the operation of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, is to be taken up by a bench led by justice Sanjiv Khanna.

“The case of the petitioners is premised on one fundamental fallacy that independence can only be maintained in any authority when the selection committee is of a particular formulation. It must be noted that the independence of the Election Commission, or any other organisation or authority, does not arise from and is not attributable to the presence of a judicial member in the selection committee,” said the Centre’s affidavit.

Read more: India’s probe finds rogue R&AW agents involved in Pannun murder plot: Report

Alternatively, the pleas against the law pressed that until its legality was decided, the government should be ordered to fill the vacancies in the Election Commission of India (ECI) through a consultative procedure that included the Chief Justice of India (CJI) in the selection panel.

The Centre’s affidavit on Wednesday said that it would be “wholly incorrect” on the part of the petitioners to suggest that the selection committees would invariably be biased if it does not have a judicial member as all high constitutional functionaries ought to be presumed to act fairly and in good faith in the public interest.

“When the legislature has acted and enacted a law, which is to be presumed to be constitutional, replacing the regime so established would be impermissible. It is submitted that the said exercise either at an interim stage or at the final stage, would be erroneous. Any interim order in the nature of the one sought by the petitioners, would amount to a stay of the statute validly passed by the Parliament at an interim stage, which is an exercise impressible within the confines of judicial review envisaged under the Constitution,” maintained the government.

Read more: ISIS India head among two arrested in Assam, to be handed over to NIA: Police

It added that the 2023 statute was completely in sync with a Constitution bench judgment of the Supreme Court in March last year by laying down a democratic and participative mechanism for the functioning of EC.

The pleas filed by Congress leader Jaya Thakur and non-profit Association for Democratic Reforms (ADR) earlier this month highlighted how the statute marked a crucial departure from the March 2023 judgment, which directed for inclusion of the CJI in the selection panel until Parliament came up with a new law. The judgment in Anoop Baranwal Vs Union of India said that the selection of CEC and ECs should be done by a panel headed by the Prime Minister and comprising two other members – leader of Opposition in Lok Sabha and the CJI, to ensure transparency in the selection mechanism.

The government said in the affidavit that the judgment provided for a “stop gap” arrangement until the constitutionally envisaged process of Parliament stepping in takes place.

“Where the Constitution itself specifically vests Parliament with the power to decide upon the appointments of the Election Commissioner and Parliament exercises this power, no question of ‘legislative overruling’ can arise. The judgment in Baranwal had been conscious of the fact that the ultimate decision-making power in this regard lay with Parliament and so it had consciously evolved a time-limited mechanism for appointments to the Election Commission. This mechanism was to last only till the time that Parliament made a law on the subject,” stated the affidavit.

Seeking dismissal of the applications, the government added that the 2023 law adequately protects the high constitutional institution of ECI, creates a far more democratic and participative statutory mechanism for functioning of the commission, and adheres to the principles laid down by the top court.

The affidavit also rejected the accusations that Lok Sabha opposition leader Adhir Ranjan Chowdhury, who was the third member of the selection panel that also comprised Prime Minister Narendra Modi and home minister Amit Shah, was given the shortlisted names at the last moment, and that this smacked of a premeditated exercise. Chowdhury gave a dissent note raising questions over the procedure after the two names were approved.

Furnishing a list of dates, the government said that Chowdhury was given an extensive list of eligible persons on March 13 in the interest of effective cooperation even though the search committee was yet to shortlist names. It was only on the morning of March 14 that the search committee zeroed in on six names and forwarded them to the members of the selection committee.

“It is, therefore, wholly wrong, misleading and malicious to suggest that the third member of the selection committee was given the shortlisted names as an act of pre-meditation on the mind of the two members of the executive as all the members received the list simultaneously. It may be noted that the persons finally appointed were from the list so shared. This belies the claim of the petitioners that no list was shared in advance of the meeting,” said the affidavit.

The President on March 14 appointed retired bureaucrats Gyanesh Kumar and Sukhbir Singh Sandhu as ECs after the high-level selection committee met in the morning. It was the first time that ECs were chosen under the new law. ECI announced the 2024 general elections, due to begin on April 19, on March 16.