As Chief Election Commissioner Rajiv Kumar nears retirement, SC to hear challenges to appointment law next month

Article 324 of the Constitution lays down that “the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

Hearing petitions which said no such law had been made and sought a collegium-style system for appointment of the CEC and ECs, a five-judge Constitution Bench of the court had in March 2023 ruled that they shall be appointed on the advice of a committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha, and the Chief Justice of India (CJI).

Subsequently, however, Parliament brought The Chief Election Commission and Other Election Commissions (Appointment, Conditions of Service and Term of Office) Act, 2023, leaving out the CJI from the panel. Under the new law, the selection committee would consist of the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition or the leader of the largest Opposition party in the Lok Sabha.

This was challenged before the apex court by the NGO Association for Democratic Reforms and Madhya Pradesh Congress leader Jaya Thakur but the court has so far refused to stay the new law.

During one such hearing in 2023, a Supreme Court bench pointed out that the March 2023 ruling was only meant to be a stop-gap arrangement till Parliament came out with a new law. It added that the Constitution Bench judgment also does not say who should be the members of the selection committee.

On Wednesday, advocate Prashant Bhushan requested the bench – also comprising Justice Dipankar Datta and Ujjal Bhuyan – that the matter be heard urgently next week given that the current CEC is retiring next month. He submitted that the question is covered by the March 2023 Constitution Bench ruling.

Chief Election Commissioner Rajiv Kumar will retire next month after presiding over the Delhi Assembly elections on February 5.

Senior Advocate Gopal Sankaranarayanan, also appearing for a petitioner, contended that the government had not removed the basis of the 2023 judgment but simply brought in the new law.

Justice Kant asked the counsel to remind the court on February 3 so that the matter can be considered on February 4.