SC denies expedited hearing to petitions against new law for appointing CEC, ECs
The new law has provisions to set up a search committee chaired by the Union law minister and two other persons not below the rank of secretary to prepare a panel for the selection committee for appointment as CEC or ECs
New Delhi: The Supreme Court on Friday denied expedited hearing to a clutch of petitions that have challenged the validity of the new law providing for the appointment of chief election commissioner (CEC) and election commissioners (ECs) by a panel that does not include the Chief Justice of India (CJI).
“These are not so simple...they are not simple issues. Had it been so simple, all of you would not have been here before this court,” a bench of justices Sanjiv Khanna and PV Sanjay Kumar told a batch of lawyers appearing for the petitioners in the case.
The bench deferred the hearing in the week commencing November 25, turning down the petitioners’ request to grant an early hearing in view of the settled legal position in the matter.
“The Centre has to file an affidavit, and we will give them six weeks more. There were general elections in the country, and they would have been busy with that. They are also interested in the matter. After all, they are the ones who have brought this new legislation,” the top court remarked.
Senior counsel Gopal Sankaranarayanan and Sanjay Parikh, and advocates Prashant Bhushan and Varun Thakur, objected to long adjournment, contending that a constitution bench judgment delivered in March 2023 had clearly outlined how the CEC and ECs were to be appointed and therefore, the central government was bound by it.
“In our view, the matter is simple because there is a constitution bench judgment on the point. There cannot be any deviation,” Sankaranarayanan argued. The court, however, retorted that the matter can be heard only in the last week of November.
The constitution bench judgment in Anoop Baranwal vs. Union of India had said that the selection of CEC and ECs should be done by a panel headed by the Prime Minister and comprising two other members—the leader of the opposition in Lok Sabha and the CJI—to ensure transparency in the selection mechanism.
The apex court had then extensively referred to a similar mechanism for selection of the director of the Central Bureau of Investigation (CBI) and Lokpal while underscoring the “devastating effect of continuing to leave appointments in the sole hands of the executive.”
To be sure, the March 2, 2023, judgment by the constitution bench 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.
In December 2023, the Centre enacted The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, marking a major shift from the decision of the constitution bench, which directed for inclusion of the CJI in the selection panel until Parliament came up with a new law.
The new law has provisions to set up a search committee chaired by the Union law minister and two other persons not below the rank of secretary to prepare a panel of five persons for consideration of the selection committee for appointment as CEC or ECs. It provides for a selection committee, chaired by the Prime Minister, the the leader of opposition, and a Union minister, to make recommendations to the president for the appointment of CEC and other ECs.
Congress leader Jaya Thakur, the NGOs Association for Democratic Reforms (ADR), Lok Prahari and the People’s Union for Civil Liberties, and some other persons approached the Supreme Court arguing that the law is in the teeth of the separation of power.
Questioning the exclusion of the CJI in the selection committee, the batch of pleas urged the top court to declare the 2023 law as unconstitutional for allegedly failing to preserve free and fair elections—a part of the basic structure of the Constitution.
The petitions complained against the law permitting the executive to dominate the matters of appointment of EC members, adding the government has breached the principle of having an independent mechanism for such appointments by negating the 2023 judgment of the Supreme Court.
Earlier, the petitions were taken up in January and February when the petitioners pressed for a stay on the law and restraining the government from making fresh appointments in the commission. The court, however, shot down such pleas even as it issued notice in the matter.