No SC stay on new law excluding CJI from CEC, EC appointments

The Supreme Court on Tuesday refused to stay the operation of the new law that provides for appointment of the Chief Election Commissioner and Election Commissioners by a panel which does not include the Chief Justice of India.

A bench of Justices Sanjiv Khanna and Dipankar Datta issued notice to the Centre on a plea filed by an NGO, Association for Democratic Reforms, and listed the matter along with other pending petitions on the issue for hearing in April.

The plea challenged the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

Advocate Prashant Bhushan, appearing for the NGO, submitted the law is contrary to the constitution bench judgement of the apex court which had directed the inclusion of the CJI in the panel mandated to pick the CEC and ECs.

He said two election commissioners are about to superannuate, and if the operation of the law is not stayed, the plea will become infructuous.

"Sorry, we cannot grant you interim relief in the matter. The matter of constitutional validity never becomes infructuous. We know our parameters for granting interim relief," the bench told Bhushan, when he insisted on an interim stay.

Bhushan, however, again urged the court to grant a stay, especially on Section 7 of the Act, by which the panel is constituted for appointment of the chief election commissioner and election commissioners, saying that the issue is important as general elections are around the corner.

Justice Khanna said, "It's not a matter which can be decided like this. A legislation of Parliament cannot be stayed like this. We have to examine the issue in terms of power of judicial review. We will hear this petition along with other pending petitions on the issue.”

Election Commissioner Anup Chandra Pandey is set to retire on February 14, while Chief Election Commissioner Rajiv Kumar will demit office on February 18, 2025.

On January 12, the top court had issued notices on two separate petitions challenging the constitutional validity of the law and they are listed for hearing in the month of April.

Section 7 of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 states– "Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of — (a) the Prime Minister — Chairperson; (b) the Leader of Opposition in the House of the People — Member; (c) a Union Cabinet Minister to be nominated by the Prime Minister — Member."

The NGO's plea said the law was enacted in 2023 in order to fill the vacuum under Article 324(2) of the Constitution of India.

"However, the impugned section restores the earlier position of law i.e. appointment of Chief Election Commissioner and Election Commissioner would be done solely by the executive. The selection committee is dominated by the members from executive i.e. Prime Minister and Union Cabinet Minister to be nominated by the Prime Minister," it said.

The plea said the new law enacted in 2023, particularly its Section 7, is violative of Article 14 (equality before law) of the Constitution, basic features of the Constitution, and overrules the 2023 constitution bench decision, without altering the basis.

The petition, filed through Bhushan, said on March 2, 2023, the constitution bench of this court held that leaving the appointment of the members of Election Commission in the hands of the executive would be seriously detrimental to the health of democracy and for the conduct of free and fair elections.

"It thus directed that in order to fill the vacuum (in the absence of legislation), the appointment to the posts of the Chief Election Commissioner and the Election Commissioners shall be done by the President of India on the basis of the advice tendered by a committee consisting of the Prime Minister, the leader of the opposition in the Lok Sabha and, in case, there is no such leader, the leader of the largest party in the opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India," the plea said.

It said soon after the verdict, Parliament passed a legislation which virtually overruled it by providing for a selection committee dominated by the executive.

This, it said, restored the previous law where the executive picked the CEC and ECs, thereby undermining the rule of law and threatening democracy.

"Apart from this, the Act was passed in Lok Sabha at a time when the majority of the opposition Members of Parliament were suspended by the speaker of Lok Sabha. Such an important legislation has been passed without any debate or discussion....," it said.

It stressed the importance of insulating the poll panel from executive interference.

"The composition of the selection committee under the Act amounts to excessive interference of the executive in the appointment of the Election Commission and is detrimental to the independence of the Election Commission," it said.