The Supreme Court today expressed its inclination to hear pleas challenging the constitutionality of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which excludes the Chief Justice of India (CJI) from the selection panel for appointing Election Commissioners (ECs). The pleas were mentioned by Advocate Prashant Bhushan, representing the Association for Democratic Reforms (ADR), before a bench comprising Justices Surya Kant, Dipankar Datta, and Ujjal Bhuyan.
Urgency of the Matter
Bhushan stressed the urgency of the matter due to the imminent retirement of the current Chief Election Commissioner, which may necessitate a new appointment. He argued that the appointment should be made in accordance with the Constitution bench judgment in Anoop Baranwal v. Union of India, where the Supreme Court had ruled that the appointment of Election Commissioners should be based on a selection panel including the CJI. Bhushan emphasized that the new law gives excessive control to the Executive, potentially compromising the independence of the Election Commission.
Constitution Bench Judgment in Focus
The 2023 Act removes the CJI from the selection committee, replacing the judicial input with a committee comprising the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition in the Lok Sabha. This change has raised concerns of executive overreach, as critics argue that it undermines the election commission’s autonomy, a point addressed in the Anoop Baranwal judgment, which held that the appointment process should reflect a balance of power and not be solely controlled by the Executive.
Argument for Constitutional Amendment
Senior Advocate Gopal Sankaranarayanan, supplementing Bhushan’s submissions, argued that the Act violates the principles laid down in the Anoop Baranwal case. He contended that the Act allows the Executive to control the selection process, which could not be achieved without a constitutional amendment. He emphasized that the Anoop Baranwal judgment relied on an interpretation of Article 324, which governs the appointment of Election Commissioners.
Court’s Observation on Timing
Justice Kant acknowledged the significance of the matter but stated that important cases require time for adequate hearing. Bhushan reassured the Court that the issue was straightforward, referring to the established constitutional framework in the Anoop Baranwal judgment. Justice Kant humorously remarked that the case would ultimately revolve around a clash between legislative powers (the enactment of the CEC Act) and the Court’s constitutional interpretation.
Background of the CEC Act
The Chief Election Commissioner and Other Election Commissioners Act, 2023, was passed after the Supreme Court’s Anoop Baranwal judgment, which emphasized a balanced approach to the appointment process. The new law gives the Executive greater control over the selection process, leading to widespread criticism from opposition parties, which argue that it weakens the Election Commission’s institutional independence. The law allows the President to appoint Election Commissioners based on the recommendations of a committee dominated by the Executive.
Pending Petitions and Government’s Response
In response to the petitions challenging the law, the Centre has filed an affidavit defending the Act, denying claims that the appointments of two Election Commissioners were made to pre-empt any judicial intervention. The Court had previously refused to stay the Act, but it will now hear arguments on the constitutionality of the law in February 2024.
Case Title and Citation
Dr. Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024 (and connected cases).
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