ADR filed its original petition two years ago, soon after the new law altering the appointment process was passed. The organisation contends that while the law follows the letter of a Supreme Court judgment on the matter, it does not uphold its spirit. According to ADR, the newly enacted law does not honour the Supreme Court’s reasoning and the Constituent Assembly’s intent, making it unconstitutional.

The Association for Democratic Reforms (ADR) is hopeful that the Supreme Court will declare the new law governing the appointment of election commissioners unconstitutional and invalidate appointments made under it.

"We are hoping that the Supreme Court will say that, this law, made by the Parliament is not constitutional, and the appointments made under this law are not valid," said Jagdeep Chhokar, Co-Founder and Trustee of ADR in an interview to CNBC-TV18.

ADR filed its original petition two years ago, soon after the new law altering the appointment process was passed. The organisation contends that while the law follows the letter of a Supreme Court judgment on the matter, it does not uphold its spirit.

"The Supreme Court's 2023 judgment spent about 200 pages explaining why the appointment of election commissioners should not be solely controlled by the executive. The rationale was that the process should include opposition leaders and independent, neutral figures to ensure fairness," said Chhokar.

According to ADR, the newly enacted law does not honour the Supreme Court’s reasoning and the Constituent Assembly’s intent, making it unconstitutional.

The controversy escalated when Leader of Opposition Rahul Gandhi, a member of the selection panel, strongly opposed the appointments. Late on February 18, the government appointed Gyanesh Kumar as the new CEC and Vivek Joshi as an Election Commissioner, just hours after a high-level selection committee meeting led by the Prime Minister. The panel included Home Minister Amit Shah and Rahul Gandhi. This marked the first time a selection panel was involved in appointing India’s top election watchdog, following the 2023 law that changed the appointment process.

Rahul Gandhi publicly released his dissent note, in which he called the government’s decision "disrespectful and discourteous," given that the appointment process is under Supreme Court scrutiny. He argued that the selection committee is skewed in favour of the government, with two of its three members from the ruling party. Despite his objections, the appointments proceeded.

Below is the verbatim transcript of the interview.

Q: The Association for Democratic Reforms (ADR) has approached Supreme Court about the manner in which the appointment of the new Chief Election Commissioner Gyanesh Kumar has been made while the process of appointment has been challenged before the apex court.

Chhokar: The ADR did not raise the matter today after Rahul Gandhi raised it yesterday. ADR filed this petition two years ago, soon after this law was passed.

For the last few months, ADR has been filing applications to the Supreme Court, seeking an urgent hearing, repeatedly bringing to the attention of the Supreme Court that the current CEC or the then-CEC will finish its tenure on February 18, and a decision should be taken before that. The last hearing was held on February 12 and one of the judges in the bench was taken ill, and therefore it was decided to postpone that hearing from the 12th of February to the 19th of February.

Even at that time, our counsel informed the Supreme Court that the appointment might happen on the 18th of February or before that, and therefore the hearing should be held early. But the Supreme Court said that we will take a decision, we will hear it on the 19th of February, and if something happens before that, we will see what to do about it. So, it is not post-Rahul Gandhi's dissent, it was two years before that, number one.

Number two, since we have challenged this law, because we are the ones who had filed the original petition about making a law for appointing the election commissioners. We are the original petitioners, and we have challenged that this law, which is regarding the appointment, follows the letter of the Supreme Court judgment, but not its spirit. The Supreme Court judgment of 2023 spent about 200 pages explaining the rationale for this appointment. Why this appointment should not be entirely within the domain of the government or the executive. The opposition and some other independent neutral people should be part of the appointment. So, since the opinion of the Supreme Court, since the rationale of the Constituent Assembly has not been honoured, we have gone to say that this law is violative of the Supreme Court direction and needs to be modified.

Q: So, essentially you're saying that, considering that your plea, which you had filed two years ago, and the Supreme Court's own decision the matter is pending, therefore, the CEC should not have been appointed before the court had thoroughly disposed of the matter?

Chhokar: We had filed an application to the court to this very effect.

Q: What are you now seeking, what are you now hoping for in terms of relief?

Chhokar: We are hoping that the Supreme Court will say that this law that was made by the Parliament is not constitutional, number one. And number two, it should say that the appointments made under this law are not valid because it was already under challenge before these appointments were made.

Q: What do you think will be the challenges before the new CEC as far as conducting elections are concerned? The outgoing CEC has spoken about the questions raised by political parties time and again for political convenience regarding the electoral process.

Chhokar: I do not speak on behalf of any political party, but we as a civil society organisation who has been working on elections for 25 years, we have worked with with many election commissioners in the past, but over the last six, seven, eight years, the situation of the election commission seems to be that they do not think that people at large have a stake in the electoral process. They seem to think that only the candidates who contest elections and political parties are the stakeholders. They have steadfastly refused to give any information to citizens when it is asked for. And that is not an appropriate thing, because the Election Commission of India (ECI) is answerable to the constitution, and through the constitution it is answerable to the people of India. So, the primary responsibility of the election commission is to the people of India, neither to candidates nor to political parties, nor to the government of the day.