CJI recuses from hearing pleas on CEC appointment
The law excludes the CJI from the selection panel, a move that petitioners claim undermines the independence of the Election Commission of India
Chief Justice of India (CJI) Sanjiv Khanna on Tuesday recused himself from hearing a set of petitions challenging the constitutionality of the new law governing the appointment of the chief election commissioner (CEC) and election commissioners (ECs). The law excludes the CJI from the selection panel, a move that petitioners claim undermines the independence of the Election Commission of India.
“I will have to decide if I will be a member of the panel,” remarked justice Khanna, explaining his decision to step back from the case to avoid a conflict of interest, as the outcome directly impacts his own potential role. The case will now be heard by a different bench in January 2025.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, enacted in December 2023, introduced a new framework for appointing the CEC and ECs.
The law establishes a search committee chaired by the Union law minister to shortlist candidates. A selection panel, led by the Prime Minister and comprising the Leader of Opposition in the Lok Sabha and a Union minister, then recommends names to the President for appointment.
This marked a significant departure from the Supreme Court’s March 2023 judgment in Anoop Baranwal Vs Union of India, which mandated the inclusion of the CJI in the selection panel to ensure transparency and safeguard the Election Commission’s independence. To be sure, the March 2023 judgment was delivered in the absence of a law to regulate the appointment of the CEC and ECs, as mandated by the Constitution. Instead, the appointments were carried out through the 1991 Transaction of Business Act, which, the court had noted, lacked objective standards regarding the selection and qualification of the CEC and ECs.
The law has been challenged by Congress leader Jaya Thakur, NGOs such as the Association for Democratic Reforms (ADR), and others. The petitioners argue that the new law violates the basic structure of the Constitution by compromising free and fair elections. They contend that excluding the judiciary from the selection process allows the Executive to dominate appointments, undermining the Election Commission’s autonomy.
The matter was last taken up by justice Khanna’s bench in August. He was not the CJI at that time and took over last month.
In March 2024, justice Khanna’s bench refused to stay appointments made under the new law, citing that the law cannot be faulted solely for lacking a judicial member on the panel. However, the bench criticised the government for rushing the appointment process while legal challenges were pending.
The petitioners had sought an interim stay on the law’s operation after two retired bureaucrats, Gyanesh Kumar and Sukhbir Singh Sandhu, were appointed as ECs. Justice Khanna’s bench did not find the situation exceptional enough to justify intervention but cautioned the government to exercise greater care in constitutional appointments.
The Centre has defended the 2023 law, describing it as a “democratic, collaborative, and inclusive” framework. In its affidavit, the government argued that the presence of a judicial member in the selection committee is not the sole determinant of the Election Commission’s independence.
“The case of the petitioners is premised on one fundamental fallacy that independence can only be maintained in any authority when the selection committee is of a particular formulation,” stated the affidavit filed in March 2024 by the Centre.
ends