Supreme Court to hear plea challenging Election Commissioners Act 2023 on March 21

Senior advocate Vikas Singh, appearing for a petitioner, asked the court to look at the Supreme Court's previous Constitution bench decision which stated the appointment to the post of Chief Election Commissioner and Election Commissioners have to be made by a panel also comprising the CJI.

New Delhi: The Supreme Court on Friday said that it would consider on March 21 a matter related to the appointment of two Election Commissioners as per the new law by a Prime Minister headed panel, which replaced Chief Justice of India by a Union Minister.

A bench of Justices Sanjiv Khanna, Dipankar Datta and Augustine George Masih said the matter has come earlier before the court twice and it was pointed out that the court normally 'won't stay a legislation by interim order'.

Senior advocate Vikas Singh, appearing for a petitioner, contended that the government has preponed the meeting of the panel to select two Election Commissioners.

He asked the court to look at the Supreme Court's previous Constitution bench decision which stated the appointment to the post of Chief Election Commissioner and Election Commissioners have to be made by a panel also comprising the CJI.

The bench, however, asked the counsel to come to the final direction in the judgment.

The Constitution bench had then stated that the panel suggested by the court was to be formed until a law is passed by Parliament in this regard.

The counsel, however, insisted when a judgment has been passed by this court, there can't be transgression. The final direction of the court was that the appointment would be made by the panel of the Prime Minister, CJI and Leader of Opposition.

The court, however, said 'let the applications filed with regard to appointment of two Election Commissioners come up for hearing.'

On March 14, retired IAS officers Gyanesh Kumar and Sukhbir Singh Sandhu were appointed as Election Commissioners by a panel of Prime Minister, Union Law Minister and Leader of Opposition in Lok Sabha, who gave a dissent note. Both of the ECs took charge and assumed the office on Friday.

NGO Association for Democratic Reforms and Congress leader Jaya Thakur have filed separate applications for a direction to stay the implementation of Section 7 of the Chief Election Commission and other Election Commissions (Appointment, Conditions of Service and Term of Office) Act, 2023, which removed the CJI in the panel.

The vacancies in the poll panel arose after Election Commissioner Arun Goel resigned on March 9, and one Election Commissioner A C Pandey completed the term in February.

The applicants contended the vacancies at a crucial time for Indian democracy when the General Elections are due to be announced on any day of March.

As per EC notification, the date of General Elections are to be announced at 3 pm on Saturday.

In their plea, the applicants said in such a situation, government ought not have the dominant say in the appointment as not only the EC is responsible for conduct of free and fair elections but also renders an adjudicatory role between the various political parties.

They sought a direction to the Union government 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 Court in 'Anoop Baranwal v. Union of India' (2023).

The Supreme Court's Constitution bench had on March 2, 2023 ruled 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.

The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 was passed by Parliament in December, 2023, which came into effect from January 2, 2024. The apex court had earlier declined to stay the law, while agreeing to examine its validity.