The Supreme Court on Wednesday said it would hear on April 16 a batch of petitions challenging validity of the law governing the appointment of Chief Election Commissioner (CEC) and Election Commissioners, which dropped the Chief Justice of India from the panel for the selection of CEC and the Election Commissioners.
Advocate Prashant Bhushan, appearing for the NGO Association for Democratic Reforms (ADR), mentioned the matter before a bench of Justice Surya Kant and Justice Nongmeikapam Kotishwar Singh, requesting for a priority hearing of the matter on another day as the matter, though listed today, was unlikely to be taken up due to the court’s packed schedule.
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Bhushan told the bench that the petitioner NGOs would not take long in presenting its arguments.
Posting the matter for hearing on April 16, 2025, the bench said it would ensure minimal urgent listings on that day so that the case could be taken up for hearing at the start of court’s proceedings.
The law – The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023 – governing the appointment of the CEC and the ECs 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 law under challenge came into force after it was notified on December 28, 2023.
Under the 2023 law, the panel for the selection of the CEC and ECs includes the Prime Minister, the leader of opposition and a central minister to be nominated by the Prime Minister, thereby tilting the scales in favour of the government in the selection process. 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.
Soon after the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023 the law was notified on December 28, 2023, the Supreme Court was moved challenging it (law) and seeking to stall the appointment of two election Commissions whose slot was vacant at the poll panel. However, the top court declined to put on hold the appointment of two Election Commissioners under the 2023 law.
Earlier on January 12, 2024 – a bench comprising Justice Sanjiv 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.
However, on December 3, 2024, the Chief Justice Sanjiv Khanna had recused himself from hearing the challenge to the 2023 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.
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, which lays down the procedure for the appointment of the CEC and the ECs.
