Supreme Court defers hearing on PILs challenging Election Commissioners’ appointment

Hours after Gyanesh Kumar took over as the new Chief Election Commissioner (CEC), the Supreme Court on Wednesday deferred the hearing of PILs challenging the validity of a 2023 law that replaced the CJI with a Union Cabinet Minister in the three-member selection panel.

A bench led by Justice Surya Kant deferred the hearing to March after Solicitor General Tushar Mehta informed the bench that he was preoccupied in a Constitution Bench matter.

The bench, however, agreed to consider expediting the hearing after petitioners’ counsel Prashant Bhushan submitted that the petitions raised issues of importance for Indian democracy.

“Every matter cannot be adjourned just because the Solicitor General is not available,” Bhushan told the bench, adding the Centre had 17 law officers and that any one of them could represent the Government in Mehta’s absence.

“I would not stoop that low,” Mehta said, scoffing at the suggestion.

A Kerala-cadre IAS officer of 1988 batch, Kumar was selected as the 26th Chief Election Commissioner on Monday night by a Prime Minister Narendra Modi-led panel which also included Home Minister Amit Shah and Leader of Opposition Rahul Gandhi.

The panel also selected Vivek Joshi, a Haryana-cadre IAS officer of 1989 batch as an Election Commissioner. Joshi – a former Chief Secretary of Haryana – will serve the poll panel till 2031.

However, Gandhi opposed the selections on account of petitions filed by the Association for Democratic Reforms (ADR), Lok Prahari, and PUCL, in the Supreme Court against the 2023 law governing the appointment of the CEC and ECs.

Ending the 73-year-old system of the government appointing the CEC and ECs, the Supreme Court had on March 2, 2023 ordered creation of a three-member panel comprising the PM, Leader of Opposition in the Lok Sabha or leader of the 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 the Parliament.”

In December 2023, the Parliament enacted the CEC and the other ECs (appointment, condition of service and term of office) Act, 2023 that replaced the CJI with a Union Cabinet Minister in the three-member selection panel. The top court had on March 21, 2024 refused to stay the 2023 Act.

Meanwhile, TMC MP Mahua Moitra has also moved the top court challenging validity of the 2023 that removed the CJI from the selection panel appointing the CEC and ECs.