Supreme Court refuses to stay new law on appointment of CEC, ECs

The bench has now fixed the next hearing of the matter in April.

The Supreme Court on Friday refused to stay the operation of the new law providing for appointment of chief election commissioner (CEC) and election commissioners (ECs) by a panel that does not include the Chief Justice of India (CJI).

“We will not stay it… stay is not possible. It’s a statutory provision,” said a bench of justices Sanjiv Khanna and Dipankar Datta, even as it issued notice to the Union government and agreed to examine the matter.

Senior advocate Vikas Singh, appearing for Congress leader and petitioner Jaya Thakur, argued that the law is in the teeth of the separation of power and that it ought to be stayed before fresh appointments are made under the new law.

While the bench agreed to examine the issue, it remained emphatic that the operation of a law cannot be stayed at this stage. It fixed the next hearing of the matter in April.

Apart from Thakur, two other petitions by a group of lawyers have also challenged the validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 202, calling the law as being violative of the Constitution as it allegedly fails to preserve free and fair elections, which forms part of the basic structure of the Constitution.

President Droupadi Murmu had on December 28 given her assent to a bill that seeks to put in place a new mechanism for the appointment of CEC and ECs.

The new law has provisions to set up a search committee chaired by the Union law minister and two other persons not below the rank of secretary, to prepare a panel of five persons for consideration of the selection committee for appointment as CEC or ECs.

It provides for a selection committee, chaired by the Prime Minister, leader of Opposition and a union minister, to make recommendations to the President for appointment of CEC and other ECs.

The new law marked a major shift from a decision of a Constitution bench in March last year, which directed for inclusion of the CJI in the selection panel until Parliament came up with a new law.

The judgment in Anoop Baranwal Vs Union of India said that the selectin of CEC and ECS should be done by a panel headed by the Prime Minister and comprising two other members – leader of Opposition in Lok Sabha and the CJI to ensure transparency in the selection mechanism.

The apex court had then extensively referred to a similar mechanism for selection of the director of the Central Bureau of Investigation (CBI) and Lokpal while underlining the “devastating effect of continuing to leave appointments in the sole hands of the Executive”.

To be sure, the March 2, 2023 judgment by the Constitution bench was delivered in the absence of a law to regulate the appointment of the CEC and ECs, as mandated by the Constitution. Instead, the appointments were carried out through the 1991 Transaction of Business Act, which the court had noted, lacked objective standards regarding the selection and qualification of the CEC and ECs.

The petitions in the top court complained that by brushing aside the March 2023 judgment to include the CJI as a member of the high-powered selection committee and replacing him by a union minister to be nominated by the PM, the government has violated the principles of free and fair election.

“Institutions supporting constitutional democracy must have an independent mechanism for appointments of its heads and members… They are compromising free and fair elections with the exclusion of the Chief Justice of India from the committee… Justice should not only be done but seen to be done,” Thakur’s petition stated.

The plea added that it is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day.

Another petitioner Gopal Singh has urged the court to implement an “independent and transparent system of selection” by constituting a neutral and independent selection committee for appointment of the CEC and ECs. The plea sought the court to injunct the implementation of the gazette notification of December 28, rolling out the new law.

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