The Supreme Court has fixed the hearing on a batch of pleas challenging the constitutionality of the Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, which dropped the Chief Justice of India (CJI) from the selection panel for the Chief Election Commissioner (CEC) and Election Commissioners. The matter, which was originally scheduled for hearing on February 4, has been rescheduled for February 12.
The petitioners in the case include the Association for Democratic Reforms (ADR), a well-known electoral watchdog, as well as other activists and legal experts who believe that excluding the CJI from the selection process hampers the Election Commission’s independence.
On February 3, Prashant Bhushan, representing ADR, requested a more suitable hearing date because the case was listed far down on the schedule, as well as an urgent hearing, citing concerns that the Centre may appoint a new CEC before the court makes its decision, as the current CEC Rajiv Kumar is set to retire on February 18.
Bhushan requested the court to prevent the government from appointing a new CEC until a verdict is reached in the case. However, Solicitor-General Tushar Mehta, representing the Union government, opposed any interim relief, stating that the Centre was ready to defend the law on its merits.
The Supreme Court bench, consisting of Justice Surya Kant and Justice N. Kotiswar Singh, stated that it would hear the case on merits on February 12 and that it would try to hear and decide the case on the same day.
The dispute centers around the Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, which was passed by Parliament in December 2023.
The law effectively replaces a system established by a March 2023 Supreme Court ruling (Anoop Baranwal v. Union of India), which had mandated a selection panel comprising the Prime Minister, Leader of the Opposition (or largest opposition party leader), and the CJI for appointing Election Commissioners.
Under the new Act, the CJI is excluded, and appointments are now made by a three-member panel consisting of the Prime Minister, Leader of the Opposition, and a Union Minister chosen by the Prime Minister.
The petitioners, including ADR and other constitutional experts, argue that this change undermines the Election Commission’s neutrality by giving excessive power to the executive. They argue that removing the CJI from the process undermines judicial oversight and may jeopardize free and fair elections.
The Union government defends the law as a valid legislative action, asserting that judicial intervention in executive appointments is unwarranted. The Centre maintains that the selection process outlined in the Act is transparent and doesn’t compromise the Election Commission’s independence.
The case is expected to be a watershed moment for the separation of powers between the judiciary and the legislature, with far-reaching implications for electoral independence and democratic accountability in India.
