SC to consider expedited hearing of challenges to law for appointing CEC, ECs
The Supreme Court agreed to consider an expedited hearing a day after Gyanesh Kumar was appointed as the next CEC amid resistance from the main Opposition Congress
The Supreme Court on Tuesday agreed to consider an expedited hearing of a clutch of petitions challenging the validity of the new law providing for the appointment of chief election commissioner (CEC) and election commissioners (ECs) a day after Gyanesh Kumar was appointed as the next CEC amid resistance from the main Opposition Congress.
President Droupadi Murmu appointed Kumar, a Kerala cadre Indian Administrative Service officer from the 1988 batch who retired as the cooperation ministry secretary before being appointed as an election commissioner last year, as the CEC late on Monday night.
The appointment came hours after the Prime Minister Narendra Modi-led selection committee proposed his name as the top poll official. The selection was not smooth. Leader of the Opposition (LoP) Rahul Gandhi, a member of the selection panel, objected to the timing of the meeting to select the CEC, citing the pendency of the case in the Supreme Court.
Kumar was appointed hours after the meeting of the selection committee earlier in the day to pick a successor to outgoing CEC Rajiv Kumar. He is the first CEC to be appointed under the new law passed in December 2023 after a Constitution bench judgment in May that year in Anoop Baranwal Vs Union of India case said that the selection of CEC and ECs should be done by a panel headed by the Prime Minister and comprising two other members – LoP in Lok Sabha and the Chief Justice of India (CJI) to ensure transparency in the selection mechanism. The court order came in the absence of a specific law to appoint the CEC and ECs.
As the court proceedings began on Tuesday, advocate Prashant Bhushan, representing one of the petitioners in the matter, pressed for an urgent hearing. While the case appears on the list of business for Wednesday, Bhushan pointed out that it is too down and that the bench ought to direct the registry to list the case as the first hearing matter.
“It is a very important matter for the democracy in the country. They have been making these appointments in complete violation of the Constitution bench judgment in the Anoop Baranwal case,” said Bhushan.
Advocate Varun Thakur, appearing for another petitioner in the same matter supported Bhushan, saying that the last three appointments in the Election Commission of India (ECI) came through while the challenge to the law remains pending.
The bench told Thakur that the Supreme Court earlier rejected a plea to stay the operation of the 2023 law through a detailed order and therefore the matter requires to be heard fully.
Bhushan urged Justice Surya Kant to issue appropriate directives to the court registry. Even as Justice Kant declined to pass a formal order, he told Bhushan that the bench could take up the matter out of its turn upon a mention on Wednesday.
The petitions challenging the 2023 law argue that the Constitution bench judgment in May 2023 clearly outlined how the CEC and ECs were to be appointed and the government was bound by it.
The March 2, 2023, Constitution bench judgment was delivered when there was no 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 noted, lacked objective standards regarding the selection and qualification of the CEC and ECs.
In December 2023, the Union government enacted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, marking a 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 Union law minister-led search committee with two other persons not below the rank of secretary to prepare a panel of five persons for consideration by the selection committee for appointment as CEC or ECs. It provides for a selection committee to make recommendations to the President for the appointment of CEC and other ECs.
Congress leader Jaya Thakur, NGOs Association for Democratic Reforms, Lok Prahari, and PUCL, and some other people approached the Supreme Court arguing that the law is in the teeth of the separation of powers. Questioning the exclusion of the CJI from the selection committee, the pleas urged the court to declare the 2023 law 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 ECI 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.
The petitions were taken up in January and February 2024 when the petitioners pressed for a stay on the law and restraining the government from making fresh appointments. The court shot down such pleas even as it issued a notice in the matter.
