New Delhi: The Chief Justice of India Sanjiv Khanna on Tuesday opted out from hearing on a batch of pleas challenging a 2023 law, which provides for appointment of the chief election commissioner and election commissioners by a panel excluding the Chief Justice of India. A bench led by Justice Khanna had heard in January and March 2024, however today he decided to recuse from the hearing saying earlier the situation was slightly different.
At the outset, the CJI said he is thinking whether he should hear the matter or not. The Centre’s counsel said we leave it on my lords. However, senior advocate Gopal Sankaranarayanan, representing one of the petitioners’, seemed surprised with the CJI’s decision regarding the matter and pointed out, “your lordship was party to the interim order”.
The CJI said then the situation was slightly different. “I am sure we can convince your lordship in a different direction”, said Sankaranarayanan. At this contention, the CJI smiled. The bench was informed that the Centre has not filed its response in the matter so far.
Advocate Prashant Bhushan, representing one of the petitioners’, argued that the matter is covered by two constitution bench verdicts. The CJI said, “I understand that, I will not be appropriate…”. Another counsel urged the bench, also comprising Justice Sanjay Kumar, to stay the 2023 law. However, the bench said the matter will be listed before another bench for hearing.
Sankaranarayanan said the Centre since May onwards had the time to file reply in the matter but they have not filed it so far. “We believe the basis of the judgment has not been removed (by the new law) and give us a date next”, he said, adding that it is a pure legal issue. Centre’s counsel said there are five petitions’ and the government needs some time to file a consolidated response, and added, “it is not simply saying that it is a pure legal issue”. Sankaranarayanan pressed that for five months Centre has not filed its response in the matter. Justice Kumar said the matter was first heard in January 2024, and asked, why the Centre did not file its response?
The CJI said, “Let it come up before a different bench. In the week commencing on January 6, 2025”. The CJI told Centre’s counsel, “pleading should be completed and it is not done. It has been very long”. Sankaranarayanan said the new bench would not have an idea of what long rope the bench had given the Centre, and added, “please say last opportunity”.
In January 2024, the matter came up before a bench led by Justice Khanna. Then, the bench comprising Justice and Justice Dipankar Datta refused to stay the new law for appointment of chief election commissioner (CEC) and election commissioners (ECs). Later, a bench led by Justice Khanna again heard the matter in March 2024. In August 2024, the matter was listed before a bench comprising justices Khanna and Kumar.
In August 2024, the apex court refused to expedite the hearing on a batch of petitions challenging the validity of the new law and said the Centre has to file an affidavit, and the court will give six weeks more to the government to file its response. A counsel had argued that in March 2023, a judgment was delivered by a constitution bench, which outlined how the CEC and ECs were to be appointed.
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 is directly in conflict with a judgment delivered by the apex court.
The constitution bench judgment in Anoop Baranwal vs. Union of India had said that the selection of CEC and ECs should be done by a panel headed by the Prime Minister and comprising two other members—the leader of the opposition in Lok Sabha and the CJI—to ensure transparency in the selection mechanism.
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