The Supreme Court on Friday refused to put on hold the operation of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023 that excludes Chief Justice of India from a panel for the selection of Chief Election Commissioner and Other Election Commissioners and gives the government a majority presence in the selection process.

Issuing a notice to the Central government returnable in April, a bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta refused to stay the operation of the law, even as senior advocate Vikas Singh told the bench, “This is against the very concept of separation of powers.”

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The bench said, “Stay will not be there. We can’t stay a statue like this. Notice we will issue.”

Senior advocate Vikas Singh appeared for the petitioner Jaya Thakur who is a Madhya Pradesh Congress leader.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023, was brought to dilute the March 2, 2023, a five-judge constitution bench’s unanimous judgment directing that the appointment of the Chief Election Commissioner and the Election Commissioners shall be done on the recommendation of a selection panel comprising the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.

As per the new law, notified on December 28, 2023, the penal for the selection of CEC and the ECs would include 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 Gazette notification followed after the President gave assent to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill 2023.

Besides Jaya Thakur, Sanjay Narayanrao Meshram, Dharmendra Singh Kushwaha, advocate Gopal Singh have approached the top court challenging the new law on the selection of the CEC and the ECs that has dropped the Chief Justice of India from the selection panel.

The petitioners have sought the setting aside of the notification of the law that replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill 2023, 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.

Opposition members had earlier expressed their serious concern over the provisions of the then bill, saying it is “one of the biggest blows to democracy” by the Modi government in the last nine years.

The court in its March 2, 2023, order had said that in case, there is no such Leader of Opposition, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength will be on the Committee. The court had said that this norm will continue to hold good till a law is made by the Parliament.

The petitioners have contended 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 appointment of the members of Election Commission of India (ECI).

They have further stated that the Act excludes the Chief Justice of India from the process of appointment of the members of ECI and it’s in violation of the March 2023 verdict of the top court which had ordered that the appointment of members of the ECI be done on the advice of a committee comprising the Prime Minister, the CJI and the Leader of Opposition in Lok Sabha till a law is made by the Parliament.