The petitions challenged the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, which removed the Chief Justice of India (CJI) from the selection panel for appointing ECs and CEC.
NEW DELHI: Today, 12th Feb, The Supreme Court has scheduled February 19 to hear petitions challenging the appointment of the Chief Election Commissioner (CEC) and Election Commissioners under the 2023 law, stating that any developments in the meantime will have consequences.
A bench comprising Justices Surya Kant and N Kotiswar Singh was informed by advocate Prashant Bhushan, representing an NGO, that the pleas were initially set for hearing on Wednesday but were later rescheduled for February 19.
Bhushan emphasized the urgency of the matter, highlighting that Chief Election Commissioner Rajiv Kumar is set to retire on February 18, and the government may appoint a new CEC under the contested 2023 law.
The bench stated, “We are fixing the matter for hearing on February 19. If anything happens in the interregnum, then the consequences are bound to follow.”
Bhushan, appearing for the Association for Democratic Reforms (ADR), also mentioned that the Supreme Court registry had informed them of the rescheduling due to Justice Kant’s illness.
Justice Kant confirmed that all related matters would be taken up on February 19.
The petitions contest the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, which removed the Chief Justice of India (CJI) from the selection panel for appointing ECs and CEC. This change has sparked concerns over the independence of the Election Commission.
Earlier, the Supreme Court scheduled the hearing for February 12 but later fixed February 19 as the final date.
A bench of Justices Surya Kant and N Kotiswar Singh will examine the case based on its merits.
Advocate Prashant Bhushan, representing the NGO Association for Democratic Reforms (ADR), highlighted the urgency of the matter, citing the impending retirement of CEC Rajiv Kumar. He noted that the issue is covered under the Supreme Court’s March 2, 2023 verdict, which ruled that the appointment of ECs should not be solely in the hands of the government.
Bhushan stated “They have brought an Act by which they have removed the Chief Justice and brought in another minister, effectively making the commissioners’ appointment only at the pleasure of the government. That’s precisely what the Constitution bench said that it is opposed to the level-playing field and our electoral democracy. You need to have an independent committee to appoint the election commissioners.”
Advocate Varun Thakur, appearing for petitioner Jaya Thakur from the Congress party, argued that the appointment of the CEC should adhere to the March 2, 2023 ruling of the Supreme Court.
Solicitor General Tushar Mehta, representing the Centre, opposed Bhushan’s submission and his plea for an interim order. He noted that a different Supreme Court bench had earlier refused to issue an interim stay on the appointments.
Mehta added that the government was prepared for a legal battle and urged the court to schedule a final hearing.
On January 8, 2024, the Supreme Court acknowledged that the issue was a conflict between judicial opinion and the legislature’s power to enact laws. The court agreed to adjudicate the matter.
On March 15, 2024, the Supreme Court declined to halt the appointments of ECs under the 2023 law and deferred hearing multiple petitions challenging the changes.
The court had previously clarified that its March 2, 2023 verdict mandated a selection panel comprising the Prime Minister, Leader of Opposition, and the CJI, but only until Parliament enacted a law. Since Parliament has now passed the 2023 Act, the new law is in effect.
The ADR NGO and other petitioners argue that excluding the CJI from the selection panel compromises the independence of the Election Commission. They claim that “the election commission should be insulated from ‘political’ and ‘executive interference’ for maintaining a healthy democracy.”
The petition also alleges that the government overruled the 2023 Supreme Court verdict without addressing its core principles. The new selection process gives excessive power to the executive, undermining the autonomy of the poll panel.
Under the 2023 Act, the selection panel led by Prime Minister Narendra Modi appointed former IAS officers Gyanesh Kumar and Sukhbir Sandhu as Election Commissioners in 2024. The ADR NGO is challenging the validity of Section 7 of the Act, which excludes the CJI from the selection process.
The Supreme Court, in its March 2, 2023 verdict, had observed that leaving the CEC and EC appointments entirely in the hands of the executive could weaken the democratic process and threaten free and fair elections.
Petitioner Jaya Thakur has urged the court to restrain the Centre from appointing ECs under the 2023 law while the legal challenge is ongoing.
CASE TITLE:
Dr Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024 (and connected cases).
