The President on Thursday appointed retired bureaucrats Gyanesh Kumar and Sukhbir Singh Sandhu as election commissioners after a high-level selection committee headed by Prime Minister Narendra Modi met in the morning — the first time that election commissioners have been chosen under a controversial new law just weeks before Lok Sabha polls.

The appointments came days after the retirement of one EC, Anup Chandra Pandey, and the surprise resignation of another, Arun Goel, left India’s poll watchdog with just the chief election commissioner, Rajiv Kumar.

But the process was not without controversy as panel member and Congress leader Adhir Ranjan Chowdhury gave a dissent note on the selection, raising questions over the procedure.

He said he sought the names of the shortlisted candidates, was provided 212 names the night before, and handed a shortlist of six names before the meeting.

“Of the six names, the names of Gyanesh Kumar and Sukhbir Singh Sandhu were finalised for appointment as election commissioners,” Chowdhury said. “I did not have information about the background, experience and integrity of these people and I did not like the procedural lacunae.”

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The appointment came a day before the Supreme Court is scheduled to hear a plea by non-profit Association for Democratic Reforms (ADR) to restrain the Union government from appointing two new ECs under the law cleared by Parliament last year — Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 — until its legality is decided.

The petition asked that, in the meantime, the government be ordered to fill the positions through a consultative procedure that involves the Chief Justice of India (CJI) in the selection panel.

Kumar is a Kerala-cadre officer from the 1988 batch who retired as the secretary of the ministry of cooperation in January. He was secretary in the Amit Shah-led ministry from May 2022. He spent five years in the home ministry, first as a joint secretary from May 2016 to September 2018 and then as an additional secretary from September 2018 to April 2021. As the additional secretary, he headed the Jammu & Kashmir desk when Article 370 was abrogated in August 2019. According to one government official, he would routinely accompany Shah to Parliament when the bill to nullify Article 370 was to be introduced.

Sandhu is an Uttarakhand-cadre officer from the 1988 batch who is currently serving as the secretary of Lokpal. He retired as the chief secretary of Uttarakhand in July 2023. Before that, he was the chairperson of the National Highway Authority of India (NHAI) between October 2019 and July 2021. He spent five years in the then ministry of human resource development from October 2014 to October 2019, first as a joint secretary in the department of higher education and then as an additional secretary.

The new officers were chosen by a committee consisting of Modi, home minister Amit Shah, and Chowdhury. Singh and Kumar fill the two vacancies left by Pandey’s retirement on February 15 and Arun Goel’s abrupt resignation on March 9.

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According to the new law, the selection process consists of two committees — a three-member search committee led by the law minister and comprising two government secretaries; and a three-member selection committee headed by the PM and consisting of a Union minister recommended by the PM and the leader of Opposition.

But critics say the new law marked a crucial departure from a judgment of a Constitution bench of the Supreme Court in March last year, 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, delivered on March 2, 2023, 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 composition of the committee was, however, changed in the new law. The SC had said in its order that it was for Parliament to enact a law on the subject.

But the new mechanism for the appointment of CEC and ECs, ADR argued in its petition, had not removed the defect which the court had found in the previous regime but has sought to restore the previous position when appointments were being made solely by the executive.

“I opposed their appointment. I was called only as a formality and their appointment is also a formality. Had the CJI (Chief Justice of India) been there, then the situation could have been different,” Chowdhury said.

With Shah’s inclusion in the selection committee, Chowdhury said the system was already rigged in favour of the government.

ADR criticised the appointments.

“While our application is waiting to be heard, these two appointments have been made. I suppose legally and constitutionally, there is no problem but by and large, it would have been appropriate for the government to wait when the Supreme Court is to take the decision the next day. It would have been decent of the government to wait. These two appointments were done in a hurry,” Jagdeep Chhokar, founding member and trustee of ADR, said.