On Friday (January 12), the Supreme Court agreed to consider Congress leader Jaya Thakur’s petition challenging the constitutionality of Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. The court, however, declined to grant an immediate stay on the legislation. However, SC said it cannot refuse to pause the law and said it will issue notice to the Centre.
NEW DELHI: The Supreme Court of India has agreed to examine the constitutional validity of the recent amendments to the law governing the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners. This development follows a petition filed by Congress leader Jaya Thakur, challenging the exclusion of the Chief Justice of India (CJI) from the appointment committee as per the new law.
The bench, comprising Justices Sanjiv Khanna and Dipankar Datta, while refusing to stay the implementation of the law, issued a notice to the Central Government. The petition, filed under Article 32 of the Constitution, questions the constitutionality of Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. This Act, signed into law by President Droupadi Murmu in December following the Parliament’s winter session, has sparked controversy due to its significant changes to the appointment process of top election officials.
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Senior Advocate Vikas Singh, representing Thakur, argued that the Act violates the doctrine of separation of powers, a fundamental structure of the Constitution. Justice Khanna, during the hearing, instructed Singh to serve an advanced copy of the petition to the respondent Union Government and the Election Commission, to which Singh agreed.
Singh said the law was
“against the very idea of separation of powers”.
However, the bench said it cannot refuse to pause the law and said it will issue notice to the Centre.
Justice Khanna said:
“We cannot stay a statutory amendment. Issue notice is returnable in April 2024,”
The contentious aspect of the new law is the formation of a selection committee for appointing the CEC and other commissioners. This committee, as per Section 7 of the Act, comprises 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. The Act empowers this committee to regulate its own procedure transparently and consider candidates outside those suggested by a search committee led by the Union Law Minister.
This legislative change follows a Supreme Court directive in March 2023, which mandated the inclusion of the CJI in the appointment process until Parliament enacted a law regulating it. The exclusion of the CJI from the new selection committee has been criticized by the opposition as executive overreach and a threat to the Election Commission’s autonomy.
Law Minister Arjun Ram Meghwal defended the amendment in Parliament, asserting the executive’s responsibility in such appointments and emphasizing the separation of powers enshrined in the Constitution.
Thakur, in her petition, expressed concerns that the new law undermines democracy, free and fair elections, and the rule of law. She argued that the exclusion of the CJI from the committee compromises the independence and transparency of the appointment process, potentially turning enforcement agencies into political tools.
In related news, a Public Interest Litigation (PIL) has been filed in the Supreme Court seeking to set aside a December 28 gazette notification for the appointment of the CEC and other commissioners under the new law. The petitioners, practicing advocates, call for an independent and transparent selection system, including the CJI in the selection panel.
This case, Dr. Jaya Thakur & Ors. v. Union of India & Anr., is set for a hearing in April 2024, marking a significant moment in India’s ongoing debate over the independence of its electoral institutions.
Case Details:
Dr Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024.
