The Supreme Court said Today (April 16), it will hear key petitions on May 14 questioning the CEC and EC appointments under the 2023 law. Petitioners argue the new law undermines democracy by excluding the Chief Justice from the selection panel.
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NEW DELHI: The Supreme Court of India today decided to hear on May 14 a group of petitions that are challenging the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) under the new 2023 law.
A bench of Justices Surya Kant, Dipankar Datta, and Ujjal Bhuyan fixed this date after senior advocate Prashant Bhushan requested for urgent hearing. Bhushan is representing a petitioner NGO that is against the current appointment process.
He told the court that the matter is already covered by the 2023 Constitution bench verdict, which should be followed. According to Bhushan, the government is ignoring this verdict while appointing the CEC and ECs.
Justice Surya Kant assured Bhushan that the court would take up this case on May 14, and for this, it would even cancel a special bench matter already scheduled for that day. Bhushan requested that the matter be taken on top of the board, even though it was already listed for that day’s hearing.
Justice Kant said that on that day the bench would also be hearing some part-heard cases related to land acquisition.
Earlier, on March 19, the court had already scheduled April 16 for hearing these petitions but the matter has now been rescheduled to May 14.
Prashant Bhushan, representing the NGO Association for Democratic Reforms (ADR), explained to the court that the main question was simple —
- Should the appointments follow the 2023 Constitution bench verdict, which said that a three-member panel consisting of the Prime Minister, Leader of Opposition, and the Chief Justice of India (CJI) should make the appointments?
- Or should they follow the new 2023 law, which removes the CJI from the selection committee?
Bhushan strongly argued that the government, by following the new law, was making a “mockery of democracy”.
On February 17, the government appointed Gyanesh Kumar as the new Chief Election Commissioner. He is the first CEC to be appointed under the 2023 law. His tenure will last until January 26, 2029, just before the next Lok Sabha election schedule is expected to be announced.
Along with him, Vivek Joshi, an IAS officer from the 1989 Haryana batch, was appointed as an Election Commissioner. Joshi is currently 58 years old and can serve in the Election Commission till 2031.
As per the law, any CEC or EC retires at the age of 65, or they may serve for a maximum of six years, whichever comes earlier.
On March 15, 2024, the Supreme Court refused to put a stay on these appointments made under the 2023 law and postponed the hearing on the related petitions.
The court reminded the petitioners that its March 2, 2023 verdict had clearly said that the panel with the PM, Leader of Opposition, and CJI should continue only until a law is made by Parliament.
In that historic decision, the Supreme Court had said that giving full control to the executive for appointing the CEC and ECs could be dangerous for the democratic system and the conduct of free and fair elections.
The NGO ADR has challenged the exclusion of the CJI from the new selection process. They said the Election Commission must be protected from “political” and “executive interference” to maintain a healthy democracy.
According to ADR’s plea, the government’s new law goes against the Supreme Court’s judgment. The petition claims that the law was passed without removing the basis of the earlier verdict and allows too much control to the executive, which hurts the independence of the Election Commission.
Under this 2023 law, the selection panel chaired by Prime Minister Narendra Modi recommended former IAS officers Gyanesh Kumar and Sukhbir Sandhu to be appointed as Election Commissioners in 2024.
EARLIER IN APEX COURT
The Supreme Court on Mar 19 fixed April 16 (Today) for hearing a batch of pleas challenging the appointment of the chief election commissioner (CEC) and election commissioners (EC) under the 2023 law.
A bench of Justices Surya Kant and N Kotiswar Singh fixed the date for hearing the pleas after advocate Prashant Bhushan said the matter is listed at number 38 and is not likely to reach for hearing during the course of the day.
Bhushan requested an urgent hearing of the matter, saying it goes to the root of democracy and the issue is covered by the 2023 Constitution bench verdict.
During the hearing, Advocate Prashant Bhushan, who represented the petitioners, spoke in court:
Bhushan: “I understand your lordships have a busy schedule… The issue is largely covered by a Constitution Bench ruling. While you may not have time to address it today, perhaps it could be listed early on the board next time.”
Justice Surya Kant: “If we continue adjusting for requests from the Bar, the entire schedule will be disrupted.”
Bhushan: “It won’t take much time.”
Justice Kant: “We are aware of that point, and we’re not overlooking anything.”
Bhushan: “If possible, it can be scheduled for an early date with 2-3 hours allocated.”
After this discussion, the Supreme Court decided that the hearing would take place on April 16.
Justice Kant: “The intention is to begin and conclude the hearing on the same day.”
Bhushan: “Our side’s arguments won’t take long.”
Justice Kant assured that the case would be given priority that day, and only a few urgent cases would be taken up along with it.
Background of the Case
Earlier, on February 19, 2024, the Supreme Court postponed the hearing of several petitions challenging the CEC Act, 2023.
These petitions argue that the removal of the CJI from the selection panel is unconstitutional because it weakens the independence of the Election Commission of India (ECI).
The Supreme Court had planned to hear the case earlier but could not take it up as the court was busy with other matters. In early 2024, the Supreme Court also refused to stop the appointment of two new Election Commissioners under this law, even though some people had asked the court to pause the appointments.
The court rejected these requests, saying that elections were coming up soon and stopping the process now would lead to “chaos and uncertainty.”
The petitions against this law were filed by:
- Association for Democratic Reforms (ADR)
- Jaya Thakur (General Secretary of the Madhya Pradesh Mahila Congress Committee)
- Sanjay Narayanrao Meshram
- Dharmendra Singh Kushwaha
- Advocate Gopal Singh
At that time, the Supreme Court did not stop the law from being implemented, but it did ask the Central Government to respond by April.
What Are the Petitioners Arguing?
The main argument in these petitions is that the CEC Act, 2023, violates the idea of free and fair elections in India. The petitioners say that the new law does not allow for an independent selection process for Election Commissioners.
They argue that removing the CJI from the panel goes against a past Supreme Court judgment from March 2, 2023.
In the March 2, 2023 ruling, the Supreme Court had said that the CEC and Election Commissioners should be appointed based on the recommendation of a selection committee that included:
- Prime Minister
- Chief Justice of India (CJI)
- Leader of Opposition in Lok Sabha
The Supreme Court had also mentioned that this system should remain until Parliament creates a law. However, when Parliament passed the CEC Act, 2023, it removed the CJI from the panel. Instead, the selection panel now includes:
- Prime Minister
- A Union Cabinet Minister (chosen by the PM)
- Leader of Opposition in Lok Sabha
The petitioners argue that this change gives too much power to the government, because the Prime Minister and his nominee would always have the majority in selecting Election Commissioners.
Legal Challenge to the Act
The petitioners are particularly challenging Sections 7 and 8 of the CEC Act, 2023, which explain how Election Commissioners should be appointed.
They are asking the Supreme Court to order the Central Government to include the Chief Justice of India (CJI) in the selection panel, to ensure a balanced and fair appointment process.
Before this law, the selection of Election Commissioners was governed by the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
However, the CEC Act, 2023, has replaced this old law and brought major changes to how Election Commissioners are chosen.
Many people believe that these changes reduce the Election Commission’s independence and give too much control to the ruling government.
What Will Happen Next?
The Supreme Court’s hearing on April 16 will be very important because it will decide whether the CEC Act, 2023, is constitutional or not.
The main question before the court is whether removing the CJI from the selection process goes against the principle of free and fair elections in India.
The court’s decision in this case will have a huge impact on how Election Commissioners are appointed in the future, and whether the Election Commission will continue to be an independent body or come under more government control.
CASE TITLE:
Dr Jaya Thakur & Ors. v. Union of India & Anr.
Writ Petition (Civil) No. 14 of 2024.
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