Justice Surya Kant, leading a three-judge Bench alongside Justices Dipankar Datta and K. V. Viswanathan, emphasized that the key issue is whether a law can undermine the Supreme Court’s authority to issue binding judgments under Article 141 of the Constitution.
NEW DELHI: On Wednesday, January 8, 2025, The Supreme Court agreed to hear the pleas challenging the constitutionality of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which excludes the Chief Justice of India from the selection panel for appointing Election Commissioners (ECs), on February 4.
Rajiv Kumar, the Chief Election Commissioner, is set to retire in February, and this has once again drawn attention to an important issue before the Supreme Court.
A bench of Justices Surya Kant, Dipankar Datta, and Ujjal Bhuyan was informed by advocate Prashant Bhushan, representing an NGO, that the current Chief Election Commissioner (CEC) Rajiv Kumar is set to retire on February 18. If the court does not intervene, a new CEC will be appointed under the new law.
Justice Kant stated, “The real test here is between the court’s opinion and exercise of legislative powers.”
The legal questions raised in the petitions center on whether Parliament has the authority to issue a gazette notification or ordinance that alters or nullifies a judgment passed by a Constitution Bench.
Brief:
The Election Commissioners’ Act, passed by the Lok Sabha on December 21 and the Rajya Sabha on December 12, replaces the 1991 Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act. It introduces significant changes to the procedures for appointing, determining salaries, and removing top election officials.
Bhushan stated that the Supreme Court, in its March 2, 2023 verdict, had established a panel consisting of the Prime Minister, the Leader of Opposition, and the Chief Justice of India (CJI) to appoint the CEC and election commissioners (EC).
“However, under the new law, the selection committee will now include the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition or the leader of the largest opposition party in the Lok Sabha. The CJI has been removed from the selection committee,”
Bhushan submitted.
The petitioners, including the NGO Association for Democratic Reforms and activist Jaya Thakur, argued that this new law was enacted in December 2023 to weaken a Supreme Court judgment from March 2, 2023, in the Anoop Baranwal case.
The petitions particularly challenged Section 7(1) of the new law. This section allows the President to appoint the Chief Election Commissioner and other Election Commissioners based on recommendations from a Selection Committee that includes the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister chosen by the Prime Minister.
In the earlier Anoop Baranwal case, the Supreme Court had ruled that the Selection Committee should consist of the Prime Minister, the Leader of the Opposition (or the leader of the largest Opposition party), and the Chief Justice of India.
The court highlighted the importance of such a diverse committee to ensure the Election Commission’s “fierce independence, neutrality and honesty” and to remove the government’s “exclusive control” over appointments.
However, the new law removed the Chief Justice of India from the Selection Committee and replaced them with a Cabinet Minister, which critics claim gives the government more power in the appointment process.
Advocate Prashant Bhushan argued, “The Constitution Bench judgment (Anoop Baranwal case) specifically held that the Executive cannot control the appointments to the Election Commission. But the law gave the Executive exactly that.”
Senior advocate Gopal Sankaranarayanan also voiced concerns, saying the law poses a serious threat to democracy and the fairness of elections.
He explained, “The Constitution Bench drew its reasoning from Article 324 (Superintendence, direction and control of elections to be vested in an Election Commission) of the Constitution. The government cannot gain control over appointments to the Election Commission through a new law. That could be done only through a Constitutional amendment.”
Prashant Bhushan further urged the court to expedite the hearing, emphasizing the importance of resolving this matter before any critical appointments to the Election Commission are made.
He suggested, “Hear it next week.”
Senior advocate Sankaranarayanan added that the Centre could only bypass the judgment by amending the Constitution, not by enacting a law. The bench advised Bhushan and Sankaranarayanan to remind the judges on February 3 for the matter to be listed the next day.
Previous Judgements
On March 15, 2024, the Supreme Court declined to stay appointments of new election commissioners (ECs) made under the 2023 law, which excluded the CJI from the selection panel. It deferred hearings on the batch of petitions challenging these appointments.
READ ALSO: BREAKING | Supreme Court Denies Stay on New EC Appointments, Sets Hearing for March 21
The court clarified that its March 2, 2023, ruling required the three-member panel—comprising the Prime Minister, the Leader of Opposition, and the CJI—to function until Parliament enacted a law.
Bhushan, representing the petitioner Association for Democratic Reforms (ADR), contested the exclusion of the CJI, emphasizing that the Election Commission must remain free from “political” and “executive interference” to ensure a robust democracy.
ADR’s plea alleged that the Centre bypassed the Supreme Court’s verdict without addressing its rationale. It argued that the new law’s selection committee composition allowed excessive executive interference, undermining the independence of the Election Commission.
In 2024, a selection panel chaired by Prime Minister Narendra Modi under the new law recommended former IAS officers Gyanesh Kumar and Sukhbir Sandhu for appointment as ECs.
The NGO challenged the constitutional validity of Section 7 of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which removed the CJI from the selection committee, and sought a stay on its operation.
The Supreme Court’s March 2, 2023, judgment had warned that leaving the appointment of the Chief Election Commissioner (CEC) and ECs solely to the executive would harm the country’s democracy and impede free and fair elections.
The March 2, 2023, Constitution Bench ruling stated, “Appointments to the posts of Chief Election Commissioner and Election Commissioners shall be made by the President of India based on the advice of a committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha or the leader of the largest opposition party in the Lok Sabha, and the Chief Justice of India.”
The court further emphasized, “This norm will remain effective until a law is enacted by Parliament.”
