SC to hear on Friday plea challenging CJI’s exclusion from panel meant to select CEC, ECs

Recently, another plea was filed by Madhya Pradesh Congress leader Jaya Thakur seeking to restrain the Centre from appointing new election commissioners as per the 2023 law which excludes the CJI from the selection committee.

A five-judge constitution bench headed by Chief Justice DY Chandrachud is scheduled to hear on Friday a plea challenging the exclusion of the Chief Justice of India from a panel meant for selecting the CEC and election commissioners. The NGO has challenged the validity and sought a stay on the operation of Section 7 of the Chief Election Commissioner and Other Election Commissioners Act, 2023 which excludes the CJI from the panel that picks the CEC and ECs. Besides the CJI, the bench also comprises Justices Sanjiv Khanna, BR Gavai, JB Pardiwala and Manoj Misra.

The hearing assumes significance as former IAS officers Gyanesh Kumar and Sukhbir Sandhu were on Thursday appointed as election commissioners. They were chosen by a panel chaired by Prime Minister Narendra Modi. The two vacancies had arisen after the retirement of Anup Chandra Pandey on February 14 and the sudden resignation of Arun Goel. The plea filed by NGO Association for Democratic Reforms has challenged the exclusion of the CJI from the selection committee, contending that the poll panel should be insulated from “political” and “executive interference” to maintain a healthy democracy. Under the new law, the selection panel has the prime minister as the chairperson and the leader of the opposition and a union minister nominated by the PM are its two members. The NGO moved the top court after Arun Goel put in his papers recently. ''Direct the Union of India to appoint the vacant positions of Election Commissioners till the pendency of the writ petition, in accordance with the Selection Committee laid down by this Hon’ble Court in Anoop Baranwal v. Union of India (Supra) in 2023.

''Democracy is a facet of the basic structure of the Constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the Election Commission should be insulated from political and/or executive interference,'' the plea, filed in the now disposed of PIL, said.

The fresh plea, filed through advocate Prashant Bhushan, said the March 2, 2023 judgement had held that leaving the appointment of the members of ECs and CEC in the hands of the executive would be seriously detrimental to the health of our democracy and conduct of free and fair election. ''We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India,'' a five-judge constitution bench had ruled on March 2, 2023.

''This norm will continue to hold good till a law is made by the Parliament,'' it had said. The fresh plea alleged that the verdict was overruled by the Centre without removing the basis of the judgement.

''That thereafter, in December 2023 Parliament in the absence of the opposition as well as substantive debate and discussion passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. This law came into effect from 2nd January 2024,'' it said.

''It is pertinent to mention that the Chief Justice of India has been removed and cabinet minister (to be nominated by the prime minister) has been added thereby restoring the previous law i.e. selection by executive thereby undermining the rule of law and threatening democracy,'' it said.

The composition of the selection committee under the new law amounted to excessive interference of the executive in the appointment of the ECs and CEC and is detrimental to the independence of the poll panel, it said. Recently, another plea was filed by Madhya Pradesh Congress leader Jaya Thakur seeking to restrain the Centre from appointing new election commissioners as per the 2023 law which excludes the CJI from the selection committee. The Congress leader has also challenged the provisions of the 2023 law.

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