‘Court's Opinion Vs Legislative Power To Enact Law’, SC On Selection Of CEC, ECs

Bench of justices Surya Kant, Dipankar Datta and Ujjal Bhuyan was informed that incumbent CEC Rajiv Kumar will retire on February 18.

New Delhi:The Supreme Court on Wednesday observed that it will be the court's opinion versus the legislative power to enact law, while hearing petitions challenging the appointment of the chief election commissioner (CEC) and election commissioners (EC) under the 2023 law.

The matter came up before a bench comprising justices Surya Kant, Dipankar Datta, and Ujjal Bhuyan.

Advocate Prashant Bhushan, representing an NGO, contended that the top court in its March 2023 verdict had set up a panel comprising the Prime Minister, the Leader of Opposition and the CJI to appoint the CEC and ECs. In December 2023, the Centre enacted The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The new law has replaced the Chief Justice of India by a minister on a panel to be set up for the purpose of selecting the CEC and ECs, which was directly in conflict with a judgment delivered by the apex court.

During the hearing today, Bhushan submitted before the bench that the incumbent CEC Rajiv Kumar will superannuate on February 18, and a new CEC would be appointed under the new law, while seeking court’s intervention in the matter. Bhushan said they have removed the CJI from the selection committee and the committee will comprise the PM, a Union cabinet minister, the Leader of Opposition or the leader of the largest opposition party in Lok Sabha.

Senior advocate Gopal Sankaranarayanan, representing one of the petitioners’, argued that the government did not remove the basis of the March judgment, and enacted a new law. Bhushan stressed that it would be a threat to democracy if the government were to control the appointment of election commissioners.

"It will be the opinion of the court under Article 141 versus legislative power to enact law," observed the bench, while scheduling the matter for further hearing on February 4. The bench said it would see whose views had supremacy.

In March last year, the apex court had declined to stay the appointments of new ECs under the new law and deferred the hearing on a batch of pleas challenging the appointments.

Read more