CJI Sanjiv Khanna recuses self from hearing pleas challenging law on CEC appointment

New Delhi: The Chief Justice of India Sanjiv Khanna on Tuesday recused himself from hearing a challenge to a 2023 law, which provides for appointment of the Chief Election Commissioner and Election Commissioners by a panel excluding the Chief Justice of India. 

Justice Khanna-led bench earlier had heard in January and March 2024 the matter and declined to stay the appointment of two Election Commissioners.

On Tuesday, he however opted himself out from the hearing saying earlier the situation was slightly different. 

At the outset, the CJI said he is thinking whether he should hear the matter or not. The Centre’s counsel said it is upto him to decide. 

However, senior advocate Gopal Sankaranarayanan, representing one of the petitioners’, however, pointed out the CJI was party to the interim order.

The CJI said then the situation was slightly different. 

“I am sure we can convince your lordship in a different direction,” Sankaranarayanan said. 

Upon this, the CJI just smiled. 

The court was also informed that the Centre has not filed its response in the matter so far.

Advocate Prashant Bhushan, representing one of the petitioners’, contended that the matter is covered by two Constitution bench verdicts. 

The CJI said, “I understand that, I will not be appropriate...”. 

Another counsel urged the bench, also comprising Justice Sanjay Kumar, to stay the 2023 law. However, the bench said the matter will be listed before another bench for hearing.

Sankaranarayanan said the Centre since May onwards had the time to file reply in the matter but they have not filed it so far. 

“We believe the basis of the judgment has not been removed (by the new law) and give us a date next,” he said, adding that it is a pure legal issue. 

The Centre’s counsel, however, said there are five petitions’ and the government needs some time to file a consolidated response.

"It is not as simple to say that it is a pure legal issue,” the counsel said. 

The bench said, “Let it come up before a different bench. In the week commencing on January 6, 2025”. 

The court also said pleading should be completed. "It has not been done. It has been very long," the bench said. 

A bench of Justices Khanna and Dipankar Datta had earlier on March 21, 2024 refused to stay the new law for appointment CEC) and ECs, saying the manner in which the government went about expediting the appointments was "unnecessary and avoidable" but it could stay the legislation as this will only lead to chaos and uncertainty.  

In August 2024, the matter was listed before a bench of Justices Khanna and Kumar. The court had then refused to expedite the hearing, saying the Centre has to file an affidavit, and the court will give six weeks more to the government to file its response. 

In December 2023, the Centre enacted The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The new law has replaced the Chief Justice of India by a minister on a panel to be set up for the purpose of selecting the CEC and ECs.

The Constitution bench judgment in Anoop Baranwal Vs Union of India had in March, 2023 declared that the appointment of CEC and ECs would be made by the President on advice of a panel, comprising Prime Minister, Leader of Opposition and Chief Justice of India, until a law is put in place in this regard.