On Tuesday, the Supreme Court agreed to expedite the hearing of multiple petitions challenging the constitutionality of a new law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). This came a day after Gyanesh Kumar was appointed as the next CEC despite opposition from the Congress party.
Kumar, a Kerala cadre Indian Administrative Service officer from the 1988 batch, who served as the cooperation ministry secretary before his appointment as an election commissioner last year, was named the CEC late Monday night by President Droupadi Murmu. His appointment followed the recommendation of a selection committee led by Prime Minister Narendra Modi, though the selection was contentious. Rahul Gandhi, Leader of the Opposition and a member of the selection panel, objected to the timing of the meeting, citing the ongoing case in the Supreme Court.
Kumar’s appointment is the first under the new law passed in December 2023, which followed a May 2023 Constitution bench ruling in the Anoop Baranwal vs. Union of India case. The ruling mandated that CEC and EC appointments should be made by a panel consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India, ensuring transparency in the process. This decision was made in the absence of specific legislation for such appointments.
As the court proceedings began on Tuesday, advocate Prashant Bhushan, representing one of the petitioners, urged for an urgent hearing. While the case was scheduled for Wednesday, Bhushan argued that it was too far down the list and requested that it be heard first. He emphasized the importance of the case for democracy, claiming the appointments violate the Constitution bench’s judgment in the Anoop Baranwal case.
Advocate Varun Thakur, representing another petitioner, supported Bhushan’s plea, noting that the last three appointments to the Election Commission occurred while the challenge to the law was still pending. The bench reminded Thakur that the Supreme Court had previously rejected a plea to stay the 2023 law, and therefore the matter must be heard in full.
Bhushan asked Justice Surya Kant to direct the court registry to list the case earlier. While Justice Kant did not issue a formal order, he indicated that the bench could take up the case out of turn on Wednesday.
The petitions argue that the 2023 law contradicts the May 2023 Constitution bench judgment, which outlined the process for appointing the CEC and ECs, a process the government must follow.
In its March 2023 ruling, the Constitution bench pointed out that, prior to the law, the 1991 Transaction of Business Act was used for appointments, but it lacked objective criteria. The new law, passed in December 2023, departs from the judgment by excluding the Chief Justice of India from the selection committee. The law establishes a Union law minister-led search committee to propose candidates, which critics argue undermines the independence of the Election Commission.
Several parties, including Congress leader Jaya Thakur, NGOs like the Association for Democratic Reforms, Lok Prahari, and PUCL, have filed petitions claiming the law infringes on the separation of powers. They argue that the exclusion of the CJI from the selection panel and the law’s provisions undermine the principle of free and fair elections, which is part of the Constitution’s basic structure.
The petitions also challenge the law for allowing the executive to dominate appointments to the Election Commission, arguing it breaches the principle of an independent selection process. The court has already dismissed requests for a stay on the law, although it issued a notice on the matter.
