SC Refuses To Stay New Law On Appointment Of CEC, ECs, Seeks Centre’s Response

The SC refused to stay the operation of the new law that provides for the appointment of the CEC and ECs by a panel that does not include the Chief Justice of India.

The Supreme Court on Tuesday sought the Centre's response to a Public Interest Litigation (PIL) challenging the Chief Election Commissioner and Other Election Commissioners Act, 2023. The court has also refused to stay the implementation of the new law governing the appointment of CECs and ECs by a panel that excludes the Chief Justice of India (CJI).

The apex court acknowledged the PIL challenging the new law, citing concerns about "potential executive dominance and the impact on democracy," the Live Law reported. 

According to a PTI report, a bench of Justices Sanjiv Khanna and Dipankar Datta issued a notice to the Centre on a petition filed by an NGO, the Association for Democratic Reforms, and scheduled a hearing on the matter in April.

According to the PTI report, Advocate Prashant Bhushan, appearing for the NGO, argued that the law contradicts the Supreme Court's constitutional bench judgement, which directed that the CJI be on the panel that appoints the CEC and ECs. He stated that two election commissioners are about to retire, and if the operation of the law is not stayed, the plea will become ineffective.

Earlier on January 12, it declined to stay a new law that overturned an apex court decision to include the Chief Justice of India as a member of the high-powered selection committee that appoints CECs and ECs.

According to The Hindu, the Bench issued notice to the Union of India and scheduled the case for hearing in April. "The law is against the very concept of separation of powers," senior advocate Vikas Singh, representing the petitioner, argued.

All About PIL That Challenges New Law EC Appointment Law: 

Amid a political squabble over the removal of the Chief Justice of India (CJI) from a panel tasked with selecting the chief election commissioner and election commissioners, an advocate had petitioned the Supreme Court to overturn a new law that gives the central government broad powers to appoint members to the poll body.

Advocate Gopal Singh filed a petition asking the Supreme Court to order the implementation of an "independent and transparent system of selection, constituting a neutral and independent selection committee for the appointment of the Chief Election Commissioner and Election Commissioners (CEC and ECs)".

In place of the CJI, the new law read as follows: "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 opposition has accused the Modi government of defying the Supreme Court by removing the CJI from the selection panel.

The Supreme Court stated in its March 2023 order that the CEC and election commissioners will be chosen by the prime minister, the leader of the opposition in the Lok Sabha, and the Chief Justice of India.

Singh had filed a PIL in the Supreme Court seeking an injunction against the implementation of the gazette notification dated December 28, 2023 relating to the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service, and Term of Office) Act, 2023.

"The pivotal legal question placed for the court's consideration in the writ petition revolves around the constitutional inquiry of whether the Parliament or any legislative assembly possesses the authority to promulgate a gazette notification or ordinance to nullify or amend a judgement previously rendered by the Supreme Court, particularly when the judgement emanates from a Constitution Bench," the Public Interest Litigation (PIL) states, according to The Hindu. 

The petition requests that the CJI be included on the selection committee for the appointment of the CEC and ECs.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 establishes 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 candidates for consideration by the selection committee for appointment as CECs or ECs.