On CEC/EC appointments’ law, the legal battle is between court’s opinion and legislative powers: SC

In March 2024, the apex court had refused to stay the operation of the 2023 Act in an interim order and dismissed applications to freeze the appointments of Sukhbir Singh Sandhu and Gyanesh Kumar as Election Commissioners. File
| Photo Credit: ANI

Chief Election Commissioner Rajiv Kumar’s retirement in February brought back into focus before the Supreme Court on Wednesday (January 8, 2025) the need to fast track a decision on the legality of a new law dealing with the appointment of Election Commissioners which gives the Central government a dominant role.

Justice Surya Kant, heading a three-judge Bench of Justices Dipankar Datta and K. V. Viswanathan, highlighted that the test regarding the validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023 would hinge on whether the court’s authority to pronounce binding decisions under Article 141 of the Constitution can be circumvented or diluted by a law.

Also read: On selecting Election Commissioners | Explained

“The real test here is between the court’s opinion and exercise of legislative powers,” Justice Kant.

The petitions in question raise the pivotal legal question whether the Parliament possessed the authority to promulgate a gazette notification or ordinance to nullify or amend a Constitution Bench judgment.

Petitioners, including NGO Association for Democratic Reforms and activist Jaya Thakur, have claimed that the law was introduced in December 2023 to dilute a Constitution Bench judgment of the Supreme Court in the Anoop Baranwal case on March 2, 2023.

The petitions have primarily challenged the validity of Section 7(1) of the statute. Section 7(1) mandates that the President would appoint the Chief Election Commissioner and the Election Commissioners on the recommendation of a Selection Committee of the Prime Minister, the Leader of Opposition in the House of the People and a Union Cabinet Minister to be nominated by the Prime Minister.

The judgment had directed the Chief Election Commissioner (CEC) and the Election Commissioners (ECs) to be appointed by the President on the advice tendered by a Selection Committee of Prime Minister, Leader of Opposition in the Lok Sabha/leader of the single largest party in Opposition and the Chief Justice of India. The Constitution Bench had explained that a committee of diverse heads was necessary to protect the “fierce independence, neutrality and honesty” of the institution of the Election Commission of India and to end government monopoly and “exclusive control” over appointments to the highest poll body.

However, months later, the same year, the law had replaced the Chief Justice of India in the Selection Committee with a Cabinet Minister, ostensibly giving the government an upper hand in the appointment process.

“The Constitution Bench judgment (Anoop Baranwal case) specifically held that the Executive cannot control the appointments to the Election Commission. But the law gave the Executive exactly that,” advocate Prashant Bhushan submitted.

Senior advocate Gopal Sankaranarayanan, also for the petitioners, said the law was a threat to democracy and fair elections.

“The Constitution Bench drew its reasoning from Article 324 (Superintendence, direction and control of elections to be vested in an Election Commission) of the Constitution. The government cannot gain control over appointments to the Election Commission through a new law. That could done only through a Constitutional amendment,” Mr. Sankaranarayanan argued.

Mr. Bhushan urged the court to fix an early date, saying the validity of the law has to be decided before the next crucial appointments to the Election Commission of India.

“Hear it next week,” he suggested.

However, Justice Kant said the case could likely be heard on February 4, 2025. The court was inundated by such requests. The judge asked the petitioners to “remind” the court on February 3, 2025.

Earlier, in March 2024, the apex court had refused to stay the operation of the 2023 Act in an interim order and dismissed applications to freeze the appointments of Sukhbir Singh Sandhu and Gyanesh Kumar as Election Commissioners.