New Delhi: The Supreme Court has refused to stay a section under the Chief Election Commissioner and the Other Election Commissioners Act, 2023, as per which a selection committee headed by the prime minister, a Union minister and the leader of opposition would appoint the chief election commissioner (CEC) and other election commissioners (ECs).
As per section 7 of the Act, the President would appoint the CEC and the ECs on the recommendation of a selection committee comprising the prime minister as its chairperson, a union cabinet minister nominated by the prime minister, and the leader of the opposition as its member.
The section goes against a judgment by a five-judge bench of the apex court in March 2022 which had disapproved of the system brought in by the Union government and suggested that the selection committee includes the PM, the leader of Opposition and the chief justice of India (CJI). It was aimed at insulating the government of the day to influence appointment of top officials who conduct elections in the country.
However, on February 13, a two-member bench of the Supreme Court hearing a fresh petition challenging the validity of the selection committee refused to stay the operation of the law. Justices Sanjiv Khanna and Dipankar Datta, responding to the plea filed by the NGO, Association for Democratic Reforms (ADR), issued a notice to the Union government and listed the next hearing of the case in April along with the other petitions on the same issue.
Appearing for ADR, senior advocate Prashant Bhushan argued that the section is in violation of the ruling of the five-judge bench. Since two ECs are about to retire, if the operation of the law is not stayed, the plea would become infructuous.
However, Justice Khanna stated, “It’s not a matter which can be decided like this. A legislation of Parliament cannot be stayed like this. We have to examine the issue in terms of power of judicial review. We will hear this petition along with other pending petitions on the issue.”
On January 12, hearing a petition filed by a Congress member Jaya Thakur which said section 7 and 8 of the Act did not provide an independent mechanism to appoint the CEC and the ECs, the court had also refused to stay the law but had issued a notice to the Union government.
“We cannot stay a statutory amendment. Issue notice is returnable in April 2024,” Justice Khanna had said.