CJI recuses from hearing challenge to new CEC/EC appointment law

The petitions raise the pivotal legal question of whether the Parliament possesses the authority to promulgate a gazette notification or ordinance to nullify or amend a Constitution Bench judgment

Chief Justice of India Sanjiv Khanna on Tuesday recused from hearing petitions alleging that a new law dealing with the appointment of Election Commissioners (ECs) gives the Central government a dominant role.

The petitions have primarily challenged the validity of Section 7(1) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023.

Section 7(1) mandates that the President of India would appoint the Chief Election Commissioner (CEC) and the ECs on the recommendation of a Selection Committee of the Prime Minister, the Leader of the Opposition in the House of the People, and a Union Cabinet Minister to be nominated by the Prime Minister.

The petitioners, including the NGO Association for Democratic Reforms and activist Jaya Thakur, claimed that the 2023 law, especially Section 7(1), was introduced to dilute a Constitution Bench judgment of the Supreme Court in the Anoop Baranwal case on March 2, 2023.

The judgment had directed the CEC and the ECs to be appointed by the President on the advice tendered by a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha/leader of the single largest party in Opposition, and the Chief Justice of India.

The Constitution Bench had explained that a committee of diverse heads was necessary to protect the “fierce independence, neutrality and honesty” of the institution of the Election Commission of India, and to end government monopoly and “exclusive control” over appointments to the highest poll body.

However, the 2023 law has not followed the Constitution Bench’s decision to include the CJI, and instead chosen to have a Union Minister in the high-powered committee.

“The Prime Minister and his nominee (Cabinet Minister) would always be the deciding factor… 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,” Ms. Thakur said in her petition.

On Tuesday, senior advocate Gopal Sankaranarayanan, appearing for Ms. Thakur, ventured to ask Chief Justice Khanna why he was recusing from the case.

Mr. Sankaranarayanan pointed out that Chief Justice Khanna had already passed an interim order in the case.

“The situation has changed now,” Chief Justice Khanna replied. He was referring to the fact that he was the Chief Justice and the challenge in the case revolved around the inclusion/exclusion of the Chief Justice from the Selection Committee.

Before he took over as the Chief Justice on November 11, this case had come up before Justice Khanna (as he was then) five times in 2024.

In March this year, a Bench led by Justice Khanna 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 as Election Commissioners.

The court on Tuesday agreed to list the petitions before another Bench in the week commencing on January 6.

The petitions raise the pivotal legal question of whether the Parliament possesses the authority to promulgate a gazette notification or ordinance to nullify or amend a Constitution Bench judgment.

Published - December 03, 2024 04:52 pm IST