The Supreme Court on Wednesday agreed to list on Friday, a batch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023, which dropped Chief Justice of India from the panel for the selection of the Chief Election Commissioner and the Election Commissioners.

The petitioners have sought to restrain the Central government from going ahead with the appointment of two Election Commissioners.

Two vacancies of the Election Commissioners have arisen following the resignation of Election Commissioner Arun Goel last week and earlier retirement of Anup Chandra Pandey. One of the petitioners has contended that the appointments against two vacancies be made in pursuance to March 2, 2023 top court judgment that the appointment of CECs and ECs should be done by the President on the advice of a committee comprising the Prime Minister, the leader of the Opposition in the Lok Sabha, and the Chief Justice of India

Upon a mentioning by advocate Prashant Bhushan, appearing for an NGO, Association for Democratic Reforms (ADR), seeking an urgent listing of the matter, Justice Sanjiv Khanna heading a bench, also comprising Justices M M Sundresh and Bela M Trivedi, said that the matter will be listed for hearing on Friday.

Soon after the mentioning by Prashant Bhushan, Justice Khanna said that they have received a message from Chief Justice D Y Chandrachud and would list the plea for hearing this Friday.

“I just got the message from the Chief Justice, the matters are listed for Friday”, Justice Khanna told Bhushan.

The petitions by the Association for Democratic Reforms (ADR), Dr Jaya Thakur – General Secretary, Madhya Pradesh Mahila Congress Committee, Sanjay Narayanrao Meshram, Dharmendra Singh Kushwaha and advocate Gopal Singh, have challenged the new law enacted and notified in December 2023, that replaced the earlier law – the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 and diluted directions in the March 2, 2023, top court Constitution bench judgment.

Earlier, on January 12, 2024, the Supreme Court had 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 excluded the Chief Justice of India from the panel for the selection of Chief Election Commissioner and Other Election Commissioners.

Under the law, enacted by Parliament in December 2023, the panel for the selection of the Chief Election Commissioner and other Election Commissioners, includes the Prime Minister, Leader of Opposition and a Central Minister to be nominated by the Prime Minister. The composition of the panel gives a clear edge to the government in the process of selecting the Chief Election Commissioner and Other Election Commissioners.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023, was passed by the Rajya Sabha on December 12 and the Lok Sabha on December 21, 2023, and notified on December 28, 2023. It was aimed to dilute March 2, 2023, the judgment by a five-judge constitution bench of the Supreme Court that had directed that the panel for the selection of Chief Election Commissioner and Other Election Commissioners, would include the Prime Minister, Leader of Opposition and the Chief Justice of India.

This law to dilute the March 2, 2023, top court judgment was passed by the Lok Sabha amidst suspension of a large number of members of Lok Sabha belonging to the Opposition parties.

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.

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 2, 2023 verdict of the top court which had ordered that the appointment of the members of the poll panel would be done on the advice of a selection committee comprising the Prime Minister, the CJI and the Leader of Opposition in Lok Sabha till a law is made by Parliament.

The Section 7 and 8 of the Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and terms of office) Act 2023, lay down the procedure for the appointment of the members of the Election Commission.