Pleas in the Supreme Court challenge new law on appointment process for Chief Election Commissioner, Election Commissioners

‘The Prime Minister and his nominee (Cabinet Minister) would always be the deciding factor,’ Congress leader Jaya Thakur’s petition says

Updated - January 02, 2024 08:52 pm IST

Published - January 02, 2024 11:01 am IST - NEW DELHI

A view of Supreme Court complex in New Delhi.

A view of Supreme Court complex in New Delhi. | Photo Credit: Shiv Kumar Pushpakar

Petitions have been moved in the Supreme Court against a new law which brushes aside a judgment to include the Chief Justice of India as a member of the high-powered selection committee to appoint the Chief Election Commissioner (CEC) and Election Commissioners (EC).

The CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 has diluted the Supreme Court judgment by replacing the Chief Justice of India with a Union Cabinet Minister, a petition filed by Congress leader Jaya Thakur said.

It argued that the exclusion of the CJI had “nullified” the committee.

“The Prime Minister and his nominee (Cabinet Minister) would always be the deciding factor,” Ms. Thakur’s petition, filed through advocate Varun Thakur, said.

“Institutions supporting constitutional democracy must have an independent mechanism for appointments of its heads and members… They are compromising free and fair elections with the exclusion of the Chief Justice of India from the committee… Justice should not only be done but seen to be done,” the petition said.

Also Read | President Droupadi Murmu gives assent to Bill for appointment of CEC, ECs

In another petition, Gopal Singh, whose petition was filed by advocate-on-record Sanjeev Malhotra and drawn by advocate Anjale Patel, asked the court to implement an “independent and transparent system of selection, constituting a neutral and independent selection committee for appointment of the Chief Election Commissioner and Election Commissioners”.

The plea sought the court to injunct the implementation of the gazette notification of December 28, 2023 rolling out the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service and Term of Office) Act.

The judgment had directed the appointment to the posts of Chief Election Commissioner and the Election Commissioners to be carried out by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and, in case there was 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.

However, the new law laid down that the CEC and ECs would be appointed by the President on the recommendation of a selection committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister to be nominated by the Prime Minister.

The CJI was ruled out of the equation and the government won primacy in the appointment process. The law said the CEC and ECs would be chosen from a pool of bureaucrats holding the rank of Secretary to the Government of India.

“The pivotal legal question placed for the court’s consideration in the writ petition revolves around the constitutional inquiry of whether the Parliament or any legislative assembly possesses the authority to promulgate a gazette notification or ordinance to nullify or amend a judgment previously rendered by the Supreme Court, particularly when the judgment emanates from a Constitution Bench,” the petition submitted.

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