Petitioners Request Supreme Court To Hear Challenge To Election Commissioners' Law Before Retirement Of CEC In February

On 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 expressed inclination to hear the matter on February 4.

The pleas were mentioned before a bench of Justices Surya Kant, Dipankar Datta and Ujjal Bhuyan by Advocate Prashant Bhushan (representing the Association for Democratic Reforms), who submitted that there is great urgency involved. Praying for a hearing next week, he said that the matter has been posted to February, but in the said month, the Chief Election Commissioner is retiring. As such, a new EC will have to be appointed and the question is whether such appointment ought to be in terms of the Constitution bench judgment in Anoop Baranwal v. Union of India or the CEC Act.

[For context, in Anoop Baranwal, the Supreme Court ordered that until the enactment of a law by the Parliament in that regard, Election Commissioners shall be appointed by the President of India on the advice of a Committee consisting of the Prime Minister, the leader of Opposition in the Lok Sabha (or leader of largest opposition party), and the Chief Justice of India.]

Bhushan further argued that by removing the CJI from the selection panel, the Executive has acquired control over the appointment of ECs, which is a threat to electoral democracy. In response, Justice Kant said that the court understands the importance of the matter, but important matters also require a good amount of time for hearing. Bhushan replied to the judge that the issue stands covered by the Constitution bench judgment in Anoop Baranwal and won't take much time.

Senior Advocate Gopal Sankaranarayanan supplemented Bhushan's submissions, contending that in Anoop Baranwal judgment, the court said that the Executive can't control the issue. However, that is precisely what the Executive has done by enacting the CEC Act, without removing the basis of the Constitution Bench judgment. The senior counsel further asserted that the Constitution bench judgment was based on the interpretation of Article 324 of the Constitution, as such the only way the government could get around it was through an amendment of the Constitution, not by bringing in a statutory law.

Asking the counsels to remind the court about this case on February 3, so it can be taken up on February 4, Justice Kant remarked in a lighter vein that ultimately, it would be a case of legislative powers (enactment of CEC Act) versus the Court's opinion (the Constitution bench judgment in Anoop Baranwal).

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)