SC refuses to stay EC' Act dropping CJI from panel to select CEC & ECs

NEW DELHI: The Supreme Court on Friday refused to stay the operation of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which dropped the Chief Justice of India from the selection panel from Election Commissioners.

A bench of Justices Sanjiv Khanna and Dipankar Datta issued a notice to the Centre and sought a response in April.

Senior advocate Vikas Singh, appearing for the petitioner, requested the bench to stay the Act saying, "This is against the very concept of separation of powers." The bench, however, refused to stay the operation of the Act and said, "Stay will not be there. We can't stay a statute like this. Notice we will issue."

Madhya Pradesh's Congress leader Jaya Thakur, Sanjay Narayanrao Meshram, Dharmendra Singh Kushwaha, and advocate Gopal Singh approached the apex court challenging the new election commissioners' law that has dropped Chief Justice of India from the selection panel for appointing Chief Election Commissioners (CEC) and other Election Commissioners (ECs).

The petition stated that the provisions of the enactment, are violative of the principle of free and fair elections since it does not provide an "independent mechanism" for the appointment of the members of the Election Commission of India (ECI).

The petition said the Act excludes the Chief Justice of India from the process of appointment of the members of ECI and it's in violation of the March 2023 verdict of the top court which had ordered that the appointment of members of the ECI be done on the advice of a committee comprising the Prime Minister, the CJI and the Leader of Opposition in Lok Sabha till a law is made by the Parliament.

By excluding the CJI from the process, the judgement of the Supreme Court stands diluted as the Prime Minister and his nominee will always be "the deciding factor" in the appointments, said the petition. It said, "Act diluted the judgment passed by this Court and nullify the Committee by excluding the Chief Justice of India. It is further submitted that various State institutions supporting constitutional democracy have an independent mechanism for the appointment of its heads and members. The same is carried out with an object to keep them insulated from any external influence that allows them to remain neutral to carry on the assigned functions."

The petition in particular challenged Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The provisions lay down the procedure for the appointment of ECI members.

The petition filed by advocate Gopal Singh sought direction from the Union of India to implement an independent and transparent system of selection constituting a neutral and independent selection committee for the appointment of the Chief Election Commissioner and other Election Commissioners.

The PIL sought direction to set aside a Gazette issued by the Centre on December 28, 2023, for the appointment of CEC and ECs.

It sought direction to the Centre to include the Chief Justice of India in the selection committee for the appointment of the CEC and ECs which currently comprises of the Prime Minister, the Leader of the Opposition in Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.

Earlier, on December 28, the President gave assent to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill 2023.

Notably, on December 21, the Loksabha passed the Bill to regulate the appointment and service terms of the CEC and ECs.

The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was passed by the Lok Sabha after a brief debate. It was passed by the Rajya Sabha on December 12.

The Supreme Court, on March 2, 2023, in response to a writ petition, directed that the appointment of CEC and ECs shall be made by the President based on the advice tendered by a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha or leader of the largest Opposition party in the House and the Chief Justice of India.

The Act replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Opposition members have earlier expressed their serious concern over the provisions of the bill, saying it is "one of the biggest blows to democracy" by the Modi government in the last nine years.