The Supreme Court, on Wednesday, adjourned the hearing on a batch of petitions including one by the NGO Association of Democratic Reforms challenging the validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023, that excluded the Chief Justice of India from the panel for the selection of the Chief Election Commissioner and the Election Commissioners.

A bench of Justice Surya Kant and Justice Nongmeikapam Kotiswar Singh adjourned the matter without giving any date for hearing. The matter was listed for hearing today but could not be taken up as court was hearing another case.

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Under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023, that was notified on December 28, 2023, the penal for the selection of CEC and the ECs includes the Prime Minister, Leader of Opposition, and a Central Minister to be nominated by the Prime Minister, thereby giving a clear majority to the government in the selection panel.

The 2023 law was brought to dilute March 2, 2023, a five-judge constitution bench judgment that had directed that the panel for the selection of the CEC and the ECs would include Prime Minister, leader of opposition and the Chief Justice of India.

The petitioners, challenging the validity of the law, have stated that the provisions of the new law are violative of the principle of free and fair elections since it does not provide an “independent mechanism” for the selection of the CEC and the ECs.

Excluding the Chief Justice of India from the selection process, the March 2, 2023, unanimous judgment of a five-judge constitution bench stands diluted as the Prime Minister and his nominee will always be “the deciding factor” in the appointment of the CEC and the ECs, the petitioners have said questioning the validity of the law.

The petitioners in particular have challenged Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, that lays down the procedure for the appointment of the CEC and the ECs.

The 2023 law replaced the earlier Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

The 2023 law was passed by Rajya Sabha on December 12 and the Lok Sabha on December 21, 2023, amidst the suspension of a large number of opposition law-maker in the lower house.

On December 3, 2024, the Chief Justice Sanjiv Khanna had recused himself from hearing the challenge to the 2023 law.

Earlier on January 12, 2024 – a bench comprising Justice Khanna (now CJI) and Justice Dipankar Datta while issuing notice to the Central government on the petitions, had refused to stay the operation of the law.

The 2023 law has been challenged by the NGO the Association for Democratic Reforms (ADR), Jaya Thakur – General Secretary of the Madhya Pradesh Mahila Congress Committee, Sanjay Narayanrao Meshram, and Dharmendra Singh Kushwaha, and advocate Gopal Singh.