SC refuses to stay new law on CEC, ECs’ appointment

NEW DELHI: The Supreme Court on Tuesday refused to stay the operation of the new law that provides for appointment of the Chief Election Commissioner and Election Commissioners by a panel which does not include the Chief Justice of India.

A bench of Justices Sanjiv Khanna and Dipankar Datta issued notice to the Centre on a plea filed by an NGO, Association for Democratic Reforms, and listed the matter along with other pending petitions on the issue for hearing in April.

The plea challenged the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

Advocate Prashant Bhushan, appearing for the NGO, submitted the law is contrary to the constitution bench judgement of the apex court which had directed the inclusion of the CJI in the panel mandated to pick the CEC and ECs. He said two election commissioners are about to superannuate, and if the operation of the law is not stayed, the plea will become infructuous.

Bhushan urged the court to grant a stay, especially on Section 7 of the Act, by which the panel is constituted for appointment of the chief election commissioner and election commissioners, saying that the issue is important as general elections are around the corner.

Justice Khanna said, “It’s not a matter which can be decided like this. A legislation of Parliament cannot be stayed like this. We have to examine the issue in terms of power of judicial review. We will hear this petition along with other pending petitions on the issue.” Election Commissioner Anup Chandra Pandey is set to retire on February 14, while Chief Election Commissioner Rajiv Kumar will demit office on February 18, 2025.

Section 7 of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 states “Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of (a) the Prime Minister Chairperson; (b) the Leader of Opposition in the House of the People Member; (c) a Union Cabinet Minister to be nominated by the Prime Minister Member.” The NGO’s plea said the law was enacted in 2023 in order to fill the vacuum under Article 324(2) of the Constitution of India.