Ahead Of CEC's Retirement On Feb 18, Supreme Court Lists Pleas Challenging Election Commissioners' Law For Hearing On Feb 12

On a mentioning of the pleas challenging constitutionality of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which removed the Chief Justice of India from the selection panel appointing Election Commissioners (ECs), the Supreme Court today listed the matter for hearing on February 12.

Reportedly, urgency in the matter has arisen on account of the impending retirement of the Chief Election Commissioner on February 18.

A bench of Justices Surya Kant and N Kotiswar Singh was due to hear the matter tomorrow (February 4), but as it was listed at item No.42 in the cause list, Advocate Prashant Bhushan (representing the Association for Democratic Reforms) mentioned the same saying that it might not come up for hearing. Praying for a decision in the main case, or an interim order, the counsel submitted that the issue is squarely covered by the Constitution bench judgment in Anoop Baranwal v. Union of India.

"The judgment says that the Election Commissioners cannot be appointed only by the government, they have to be appointed by an independent committee...otherwise, it's a threat to our electoral democracy. They have brought an Act by which they have removed the Chief Justice and brought in another minister, effectively making the Commissioners appointment only at the pleasure of the government. That's precisely what the Constitution Bench said is opposed to level-playing field and our electoral democracy. You have to have an independent Committee to appoint the Election Commissioners", Bhushan submitted.

Solicitor General Tushar Mehta, appearing for the Union, opposed the request for an interim order, highlighting that such relief was declined by a coordinate bench of the Court vide a detailed speaking order. The SG said that the Union's reply is ready and the matter must be taken up for final hearing.

Hearing the counsels, Justice Kant remarked, "Better this matter is decided on merits...". Accordingly, the matter was listed for February 12. When Bhushan expressed that the hearing won't take long, Justice Kant said that an attempt would be made to wind up the matter on the said date.

Background

The Election Commissioners' Act, which received approval from the Lok Sabha on December 21 and the Rajya Sabha on December 12, replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, introducing key changes to the appointment, salary, and removal procedures for top election officials.

The most notable feature of the new legislation is that the President of India would appoint the election commissioners on the strength of a selection committee's recommendation, prepared after considering a list of candidates proposed by a search committee headed by the union law minister. According to Section 7, the selection committee would consist of the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition or the leader of the largest opposition party in the Lok Sabha. Section 8 empowers the panel to regulate its own procedure in a transparent manner, and even consider persons other than those suggested by the search committee.

This legislative development came after a constitution bench led by Justice (Retd) KM Joseph directed election commissioners to be appointed by the President of India on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition or the largest opposition party's leader, and the Chief Justice of India.

The new law excluding the Chief Justice from the selection committee triggered a barrage of criticism from the opposition for alleged executive overreach and encroachment on the election commission's autonomy. Those critical of the bill also argued that this diminished the election commission's institutional legitimacy, and was contrary to the constitution bench's judgment.

The enactment of the Election Commissioners' Act triggered a cascade of litigation, with Congress leader Jaya Thakur, the Association for Democratic Reforms, and others approaching the apex court.

In the meantime, President Droupadi Murmu notified the appointments of former IAS Officers Gyanesh Kumar and Sukhbir Singh Sandhu as members of the Election Commission. They were nominated by a committee comprising Prime Minister Narendra Modi, Home Minister Amit Shah and Leader of the Opposition Adhir Ranjan Chowdhury.

The Centre has filed an affidavit opposing the batch of pleas, where it has denied the petitioners' allegation that two election commissioners were hastily appointed on March 14 to pre-empt any orders passed by the Court on the next day, when the matters were listed for hearing on interim relief.

In March, 2024, a bench comprising Justices Sanjiv Khanna (now CJI) and Dipankar Datta refused to stay the CEC Act. During the hearing, the Bench remarked that there were two aspects in the matter - one being whether the Act itself was constitutional and the other being the procedure adopted.

Case Title: Dr Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024 (and connected cases)