In January, when the case came up, Justice Kant had highlighted that the test regarding the validity of the 2023 Act would hinge on whether the apex court’s authority to pronounce binding decisions under Article 141 of the Constitution could be circumvented or diluted by a law. File
| Photo Credit: The Hindu
The Supreme Court on Wednesday (February 12, 2025) shifted the hearing on petitions challenging the legality of a new law which gives a dominant role to the Central government in the appointment process of Chief Election Commissioners (CEC) and Election Commissioners (EC) to February 19, a day after incumbent CEC Rajiv Kumar is scheduled to retire from office.
Advocate Prashant Bhushan, appearing for one of the petitioners, the NGO Association for Democratic Reforms, indicated to a Bench of Justices Surya Kant and N.K. Singh that the case was time-sensitive due to the impending retirement of Mr. Kumar.
Justice Kant however assured Mr. Bhushan that “consequences” of the court’s decision on the validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023 would inevitably follow even if something had happened in the interregnum.
Also Read | On CEC/EC appointments’ law, the legal battle is between court’s opinion and legislative powers: Supreme Court
The exchange happened during an oral mentioning made before the Bench by Mr. Bhushan, who said the case was originally listed on February 12.
Justice Kant said he had not been keeping well and instructed the Registry in court to certainly list the case on February 19.
The previous hearing of the case was on February 3. The petitioners had told the court that they ideally wanted a decision on the law before the appointment of the next CEC.
Watch | How were the new Election Commissioners selected, and why is the new law being criticized ?
On February 3, Justice Kant had said the Bench would endeavour to hear and decide the case on February 12 itself. On that day, Solicitor General Tushar Mehta, appearing for the Union government, had submitted that a coordinate Bench of the apex court had, on an earlier occasion, denied any interim relief of stay of the law. 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.
In January, when the case came up, Justice Kant had highlighted that the test regarding the validity of the 2023 Act would hinge on whether the apex court’s authority to pronounce binding decisions under Article 141 of the Constitution could be circumvented or diluted by a law.
“The real test here is between the court’s opinion and exercise of legislative powers,” Justice Kant had remarked.
Explained | On selecting Election Commissioners
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 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. The provision mandated 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.
Also Read | Search committee set up to shortlist names for next Chief Election Commissioner, say sources
The judgment had directed that CECs and the Election Commissioners 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.
In short, 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.
Published – February 12, 2025 12:18 pm IST