SC Declines Stay on New Law for CEC & ECs Appointment By Panel Excluding CJI

The Supreme Court on Tuesday refused to stay implementation of the new law, which establishes a panel excluding the Chief Justice of India for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

A bench comprising Justices Sanjiv Khanna and Dipankar Datta issued notice to the Centre on a plea filed by an NGO, ‘Association for Democratic Reforms’, and scheduled the matter for hearing in April alongside other pending petitions concerning the issue.

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, representing the NGO, argued that the law contradicts a constitutional bench judgment of the apex court, which mandated the presence of the CJI on the appointment panel for the CEC and ECs. Bhushan noted that two election commissioners are nearing retirement, and without a stay on the law’s operation, the plea would lose relevance.

“Sorry, we cannot grant you interim relief in the matter. The issue of constitutional validity never becomes infructuous. We are aware of our parameters for granting interim relief,” the bench informed Bhushan, rejecting his plea for an interim stay.

According to the new law, the Chief Election Commissioner and other Election Commissioners are to be appointed by the President upon the recommendation of a Selection Committee. This committee includes the Prime Minister as Chairperson, the Leader of Opposition in the House of the People as Member, and a Union Cabinet Minister nominated by the Prime Minister as Member.

The plea argued that the law, enacted in 2023, aimed to address the void under Article 324(2) of the Constitution of India. “However, the impugned section reinstates the previous legal position, where the appointment of Chief Election Commissioner and Election Commissioner would be solely executed by the executive. The selection committee is predominantly composed of members from the executive, namely the Prime Minister and the Union Cabinet Minister nominated by the Prime Minister,” the plea contended.