Supreme Court puts off hearing pleas challenging law on CEC appointment

The hearing in the Supreme Court of petitions challenging a law that gives the government a dominant role in the appointments of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) did not materialise on Wednesday (February 19, 2025).

SC hearing on CEC/EC appointment, highlights

A Bench headed by Justice Surya Kant was caught up in other cases while Solicitor General Tushar Mehta, appearing for the Centre, sought an adjournment on the ground that he was appearing in another courtroom before a Constitution Bench.

Repeated oral mentionings by petitioners failed to make much difference as the Bench indicated it may push the case to March 19, a month from now.

Advocate Prashant Bhushan, appearing for petitioner-NGO Association for Democratic Reforms, urged the court for an early hearing, saying the case was of seminal importance and would not take up much time. He said the petitioners would use up only an hour of the court’s time. The Bench appeared non-committal to the request for a date earlier than March 19.

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Anoop Baranwal case

Advocate Kaleeswaram Raj, intervening in the case, said the discussion would be centred on a five-judge Bench judgment delivered in March 2023 in Anoop Baranwal versus Union of India, which had included the Chief Justice of India as a member of the high-powered selection committee involved in the appointments of CEC and ECs.

The petitioners like activist Jaya Thakur, represented by advocate Varun Thakur, have argued that the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023 was introduced to dilute the Anoop Baranwal judgment.

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Petitioners have primarily challenged the validity of Section 7(1) of the statute. The provision mandated that the President would appoint the CECs and ECs on the recommendation of a selection committee 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. The statute, in short, had replaced the CJI on the selection panel with a Union Minister, giving the government an upper hand in appointments to the Election Commission of India.

The case raises the pivotal legal question whether the Parliament can circumvent a Constitution Bench judgment without giving explicit reasons for doing so.

In January, when the case came up, Justice Kant had highlighted that the test regarding the validity of the 2023 Act would hinge on whether the apex court’s authority to pronounce binding decisions under Article 141 of the Constitution could be circumvented or diluted by a law.

“The real test here is between the court’s opinion and exercise of legislative powers,” Justice Kant had remarked.

The petitioners had orally raised the issue of the appointments of the new CEC and EC Gyanesh Kumar and Vivek Joshi, respectively, by employing the 2023 law. Mr. Bhushan has pointed out that the appointments were made while the petitions challenging the law were pending in the apex court.

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On February 12, the court did not expressly object or stop the government from using the 2023 law in the appointment process of a new CEC to succeed Rajiv Kumar, who retired on February 18. Justice Kant had assured Mr. Bhushan that “consequences” of the court’s decision on the validity of the Act would inevitably follow even if something had happened in the interregnum.

In March 2024, the apex court had refused to stay the operation of the 2023 Act in an interim order and dismissed applications to freeze the appointments of Sukhbir Singh Sandhu and Gyanesh Kumar, currently the CEC, as Election Commissioners.

February 18 had seen the Bench assure petitioners that the case would be given priority on Wednesday.

Responding to Mr. Mehta’s request for an adjournment, Mr. Bhushan said a case as important as this one ought not to be adjourned solely due to the unavailability of the Solicitor General. Mr. Bhushan said any one of the 17 law officers in the Supreme Court could appear for the Union government.