NEW DELHI: The Supreme Court on Wednesday scheduled a hearing for February 4 to address petitions challenging the appointment process for the chief election commissioner (CEC) and election commissioners (ECs) under the 2023 law. The apex court said, “It will be the opinion of the court under Article 141 versus legislative power to enact law.”
A bench comprising Justices Surya Kant, Dipankar Datta, and Ujjal Bhuyal mentioned the critical issue at hand. It was informed by advocate Prashant Bhushan, representing an NGO, pointed out that incumbent CEC Rajiv Kumar is set to retire on February 18, and a new CEC could be appointed under the contested law if the court does not intervene.
The March 2, 2023, Supreme Court verdict had mandated the formation of a selection panel including the Prime Minister, the leader of opposition, and the Chief Justice of India (CJI) to appoint the CEC and ECs. However, Bhushan argued that the new law excludes the CJI from the selection panel, replacing them with a Union cabinet minister.
“Under the new law, the selection committee will comprise the Prime Minister, a Union cabinet minister, and the leader of opposition or the leader of the largest opposition party in Lok Sabha. They have removed the CJI from the selection committee,” Bhushan submitted.
The court emphasised its role in assessing the matter, saying it would determine “whose views have supremacy.”
Senior advocate Gopal Sankaranarayanan contended that the government could not bypass the March 2 judgment without amending the Constitution. “The only way the Centre could have got around the judgment was by amending the Constitution and not enacting a law,” he argued.
Bhushan further said that government control over the appointments could undermine democracy. “The government cannot remove the CJI from the selection panel which was directed to be formed by the Supreme Court,” he said.
The March 2 judgment had explicitly stated that appointments to the posts of CEC and ECs must be made by the President on the advice of a committee including the Prime Minister, leader of opposition, and the CJI. This norm, the court noted, would stand until Parliament enacted a law.
Bhushan, appearing for the petitioner Association for Democratic Reforms (ADR), argued that the exclusion of the CJI under the 2023 law amounted to excessive executive interference and compromised the independence of the Election Commission.
Another petitioner, Congress leader Jaya Thakur, sought to restrain the Centre from making appointments under the new law, contending it was detrimental to free and fair elections.
Former IAS officers Gyanesh Kumar and Sukhbir Sandhu were recommended as ECs in 2024 by a selection panel chaired by Prime Minister Narendra Modi under the new legislation.
The NGO ADR has specifically challenged Section 7 of the Chief Election Commissioner and other Election Commissioners Act, 2023, which excludes the CJI from the selection process.
The bench asked Bhushan and Sankaranarayanan to remind the judges on February 3 for the matter to be heard the next day.
