The Supreme Court on Tuesday refused, for a second time, to ban a contentious new law on the appointment of election commissioners. The court has, though, added the petition to a list of pending cases on this subject and directed that all these be heard in April, potentially days before a general election. The court has also issued a notice to the central government seeking a reply.
The new petition has been filed by the Association for Democratic Reforms, an apolitical and non-partisan non-profit organisation working electoral and political reforms in the country.
In the hearing today, Advocate on Record Prashant Bhushan, arguing for ADR, said the law had to be banned now since one of the election commissioners, Anup Chandra Pandey, is to retire tomorrow.
If the operative section of the new law – which states appointments are based on the recommendation of a three-member committee led by the Prime Minister and including a member of the union cabinet, and not the Chief Justice of India – remains, Mr Bhushan said, the petition becomes “ineffective”.
However, a two-member bench of Justice Sanjeev Khanna and Justice Dipankar Gupta disagreed and said matters of “constitutional validity are never infructuous (unnecessary)”.
“Sorry, we cannot grant you interim relief. Matter of constitutional validity never becomes infructuous. We know our parameters for granting interim relief,” the bench told Mr Bhushan.
Last month too, the court refused to ban the law – on a petition by the Congress’ Jaya Thakur – but said it was ready to ‘test’ it, and issued notices to the centre and the Election Commission.
Ms Thakur’s petition also demanded a ban on the law, which critics say gives Prime Minister Narendra Modi and his ruling BJP an iron grip over naming Election Commissioners, and thereby control over the Election Commission of India, which regulates and oversees all polls.
Critics have called for the Chief Justice of India to be included, to balance out any potential conflict of interests that might be raised by the presence of politicians on the appointment panel.
In fact, in March last year the court did say the Chief Justice would be the third member of the panel.
However, that ruling was controversially overturned; the government passed a bill replacing the Chief Justice with a member of the union cabinet to be nominated by the Prime Minister.
The bill was passed by the Lok Sabha in December even as most of the opposition was suspended. The opposition attacked the proposed law, saying it would compromise the poll panel’s independence.
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