SC refuses to stay new law on appointment of CEC & ECs

The Supreme Court on Friday, 12 January refused to pass any interim order to stay the implementation of the recent legislation by Parliament which excludes the Chief Justice of India from the process of appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs).

“There will not be a stay. We cannot stay a statute like this,” a bench presided over by Justice Sanjiv Khanna told senior advocate Vikas Singh, who pleaded for an interim injunction against the implementation of the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service and Term of Office) Act, 2023.

Singh, appearing on behalf of a PIL litigant, argued that the impugned legislation violates the separation of power -- which has been held to be a part of the basic structure of the Constitution.

The bench, also comprising Justice Dipankar Datta, said that it will not pass any interim order but will issue notice to the Union government and others in the matter.

“Issue notice returnable in the month of April 2024,” ordered the apex court.

Several public interest litigations (PILs) were filed before the Supreme Court against the recent gazette notification issued by the Union Ministry of Law and Justice providing that the CEC and the ECs will be appointed by the President of India on the recommendation of a Selection Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister to be nominated by the Prime Minister.

One of the pleas filed by a Noida-based lawyer sought directions to set aside the gazette notification issued by the Union government on 28 December, 2023 and to include the Chief Justice of India in the selection committee for the appointment of the CEC and ECs.

Further, it sought a direction to the Union of India for implementing an independent and transparent system of selection constituting a neutral and independent selection committee for appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs).

In March last year, a Constitution Bench of the Supreme Court had held that the appointment of top officials of the Election Commission shall be done by the President on the advice of a panel comprising the Prime Minister, Leader of Opposition (LoP) and the Chief Justice of India.

“We declare that the appointment of the CEC and the other ECs shall be made on the recommendations made by a three-member Committee comprising the Prime Minister, LoP of the Lok Sabha and in case no LoP is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India,” said the apex court, clarifying that its guidelines shall be in effect until Parliament makes a law in consonance with Article 324(2) of the Constitution.