SC to hear on Feb 12 PILs challenging new law on appointment of CEC, ECs
The Supreme Court on Monday said it would take up on February 12 PILs challenging a law on appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) that replaced the CJI with a Union Cabinet Minister in the three-member selection panel.
CEC Rajiv Kumar is due to retire on February 18.
On behalf of petitioner Association for Democratic Reforms, advocate Prashant Bhushan told a Bench led by Justice Surya Kant that the matter was listed on February 4 but it was unlikely to be heard as there were several cases listed before it.
The Bench – which also included Justice N Kotiswar Singh -- said it would decide the issue on merits.
Bhushan said the matter required an urgent hearing as current CEC Rajiv Kumar was due to retire on February 18. He said the issue was covered by the a 2023 Constitution Bench verdict of the top court.
He said the 2023 verdict ruled the election commissioners couldn’t only be appointed by the government, but by an independent committee comprising the Prime Minister, Leader of Opposition and Chief Justice of India or else it would be a threat to the electoral democracy.
Solicitor General Tushar Mehta opposed Bhushan’s request for an interim order, saying another Bench of the court had refused to pass any interim orders. He said the Centre was ready for arguments in the matter and the court could fix it for a final hearing.
Noting that "It will be the opinion of the court under Article 141 versus the legislative power (of Parliament) to enact laws," the top court had on January 8 said that it would examine whose views had supremacy.
Article 141of the Constitution says a law declared by the Supreme Court is binding on all courts and authorities within India.
Citing its March 2 2023 verdict, Bhushan had said the law laid down by the court set up a panel comprising the Prime Minister, the Leader of Opposition and the CJI to select the CEC and ECs.
"However, under the new law the selection committee will comprise the Prime Minister, a Union Cabinet Minister, the Leader of Opposition or the leader of the largest opposition party in the Lok Sabha. They have removed the CJI from the selection committee," Bhushan had pointed out.
The Bench, however, pointed out that the March 2, 2023 verdict directed for the three-member panel comprising the Prime Minister, Leader of Opposition and the CJI to operate only till Parliament enacted a law.
Ending the 73-year-old system of the government appointing the Chief Election Commissioner and Election Commissioners, the Supreme Court had on March 2 last year ordered creation of a three-member panel comprising the Prime Minister, Leader of Opposition in the Lok Sabha or leader of largest opposition party and the CJI to select them.
In a unanimous verdict, a five-judge Constitution Bench led by Justice KM Joseph (since retired) had, however, said, “This norm will continue to hold good till a law is made by Parliament.”
The Bench had earlier issued notice to the Centre on ADR’s PIL challenging the validity of the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service and Term of Office) Act, 2023, notified in the official gazette on December 28, 2023. But it had refused to stay the appointments of new ECs under a 2023 law which excluded the CJI from the selection panel.
