Supreme Court Refuses To Stay New Law Excluding CJI From Appointment Of CEC; Issues Notice Returnable In April

The Supreme Court has refused to stay the newly enacted law, The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The Court issued notice in a batch of petitions, where the lead matter is preferred by Congress Leader Jaya Thakur challenging the vires of Section 7 and Section 8 of the Act.

The plea challenges the exclusion of the Chief Justice of India from the selection election panel to appoint the Chief Election Commissioner and other Election Commissioners.

A bench of Justice Sanjiv Khanna and Justice Dipankar Datta noted in the order, "...issue notice in the matter returnable in the month of April 2024".

Senior Advocate Vikas Singh appearing for Thakur at the outset said, "milords this is very against the concept of separation of power...".

"Have you served an advance copy on the other side?", asked Justice Khanna.

"There is no system in the Supreme Court to serve an advance copy. It is only in the High Court", said Singh in response.

Then Justice Khanna asked to serve a copy first. Subsequent to which, though Singh agreed, he requested for a stay on the operation of the Act saying that the Court has done so in the past.

But the bench rejected the request outright though said that it will issue notice in the plea.

As per the Section 7(1) of the Act, “The Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of— (a) the Prime Minister—Chairperson; (b) the Leader of Opposition in the House of the People—Member; (c) a Union Cabinet Minister to be nominated by the Prime Minister—Member”.

In Anoop Baranwal v Union of India , the Supreme Court had directed that the Election Commissioners' appointment shall be made on the advice of a committee consisting of (1) PM (2) Opposition Leader in Lok Sabha and (3) CJI. The Court had clarified that this arrangement will be subject to any law to be made by Parliament.

As per Section 6, a Search Committee headed by the Minister of Law and Justice and comprising two other members not below the rank of Secretary to the Government of India, shall prepare a panel of five persons for consideration of the Selection Committee, for appointment as the Chief Election Commissioner and other Election Commissioners.

Cause Title: Dr. Jaya Thakur and Ors. v. Union of India & Anr.