The Supreme Court on January 12 declined to stay a new law which brushed aside an apex court judgment to include the Chief Justice of India as a member of the high-powered selection committee to appoint Chief Election Commissioner (CEC) and Election Commissioners (ECs).
“How can we stay a statute?” Justice Sanjiv Khanna, leading a Bench comprising Justice Dipankar Datta, asked petitioner Jaya Thakur’s lawyers.
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The Bench however issued notice to the Union of India and listed the case for hearing in April. “The law is against the very concept of separation of powers,” senior advocate Vikas Singh, for the petitioner, submitted.
“The CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 has diluted the Supreme Court judgment by replacing the Chief Justice of India with a Union Cabinet Minister,” Ms. Thakur, a Congress party leader, argued. Her petition argued that the exclusion of the CJI “nullified” the committee.
“The Prime Minister and his nominee [Cabinet Minister] would always be the deciding factor,” Ms. Thakur’s petition, filed through advocate Varun Thakur, said.
“Institutions supporting constitutional democracy must have an independent mechanism for appointments of its heads and members… 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,” the petition said.
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In another petition, Gopal Singh, whose petition was filed by advocate-on-record Sanjeev Malhotra and drawn by advocate Anjale Patel, asked the court to implement an “independent and transparent system of selection, constituting a neutral and independent selection committee for appointment” of the CEC and ECs.
The plea sought the court to injunct the implementation of the Gazette notification of December 28, 2023 rolling out ‘The CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act.’
The judgment had directed the appointment to the posts of CEC and the ECs to be done by the President on the basis of the advice tendered by a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India.
However, the new law laid down that the CEC and ECs would be appointed by the President on the recommendation of a selection committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister to be nominated by the Prime Minister.
The CJI was ruled out of the equation and the government won primacy in the appointment process. The law said the CEC and ECs would be chosen from a pool of bureaucrats holding the rank of Secretary to the Government of India.
“The pivotal legal question placed for the court’s consideration in the writ petition revolves around the constitutional inquiry of whether the Parliament or any Legislative Assembly possesses the authority to promulgate a Gazette notification or Ordinance to nullify or amend a judgment previously rendered by the Supreme Court, particularly when the judgment emanates from a Constitution Bench,” the petition submitted.
