SC declines to stay new EC appointments under 2023 law, sets hearing for March 21

The Supreme Court has declined to stay the appointments of new election commissioners (ECs) under the 2023 law, which excludes the chief justice of India from the selection panel. The bench, comprising justices Sanjiv Khanna, Dipankar Datta, and Augustine George Masih, refused to stay the appointments, stating, "Normally and generally, we do not stay a law by way of an interim order." The court deferred the hearing on pleas challenging the appointments of two ECs till March 21.

The appointments of Gyanesh Kumar and Sukhbir Sandhu as ECs were made on Thursday. The selection panel, chaired by Prime Minister Narendra Modi, selected them to fill the vacancies in the Election Commission after the retirement of Anup Chandra Pandey and the sudden resignation of Arun Goel. The appointments were made under the 2023 law, which amended the process of appointing ECs by excluding the chief justice of India from the panel.

Challenges to the 2023 Law


The NGO Association for Democratic Reforms (ADR) has challenged the validity of the 2023 law, particularly section 7, which excludes the CJI from the panel that selects the CEC and ECs. The ADR argued that the Election Commission should be insulated from political and executive interference for maintaining a healthy democracy. The ADR's plea alleges that the 2023 law undermines the rule of law and threatens democracy by restoring the previous law of selection by the executive.

"We declare that as far as appointments to the posts of chief election commissioner and election commissioners are concerned, the same shall be done by the president of India on the basis of the advice tendered by a committee consisting of the prime minister of India, the leader of 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 and the chief justice of India," a five-judge constitution bench had ruled on March 2 last year.

"This norm will continue to hold good till a law is made by Parliament," it had said.

The ADR's plea has alleged that the verdict was overruled by the Centre without removing its basis.

"In December 2023, Parliament, in the absence of the opposition as well as a substantive debate and discussion, passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. This law came into effect from 2nd January, 2024," it has said.

"It is pertinent to mention that the chief justice of India has been removed and a cabinet minister (to be nominated by the prime minister) has been added, thereby restoring the previous law i.e. selection by executive, thereby undermining the rule of law and threatening democracy," it has said.

Court's Response

Senior advocate Vikas Singh, representing petitioner Jaya Thakur, argued that there was a clear-cut transgression in the Chief Election Commissioner and Other Election Commissioners Act, 2023. He referred to a March 2, 2023 verdict of the apex court, which had constituted a panel comprising the prime minister, the leader of opposition, and the CJI for the appointment of ECs and the CEC. Singh contended that the court had earlier stayed ordinances where there were transgressions of its verdicts.

Future Proceedings

The court has asked Singh to file a fresh application regarding the appointment of ECs, and the matter will be heard on March 21, along with other petitions challenging the 2023 law. The hearing assumes significance as it pertains to the independence of the Election Commission and the process of appointing ECs and the CEC.

The Supreme Court's decision not to stay the appointments of new ECs under the 2023 law sets the stage for a crucial legal battle over the independence of the Election Commission. The challenges to the 2023 law highlight the need to ensure that the appointment process is free from political and executive interference, in line with the principles of democracy and the rule of law. The court's upcoming hearing on the matter will be closely watched as it could have far-reaching implications for India's electoral process.