The Supreme Court on Friday indicated that neither Chief Justice Surya Kant nor his future successors will hear the petitions challenging the 2023 law that removed the CJI from the panel that selects the chief election commissioner and the election commissioners to avoid any apparent “conflict of interest”.
The perceived “conflict of interest” stems from the fact that the issue revolved around the exclusion of the CJI and might draw criticism if the incumbent or his successors dealt with the matter.
A bench of CJI Kant, Justices Joymalya Bagchi and Vipul M. Pancholi indicated during a hearing on the matter when the CJI said he wanted to recuse himself to avoid a “conflict of interest”.
Advocate Prashant Bhushan, appearing for petitioner Association for Democratic Reforms (ADR), suggested that the matter be listed before a bench that does not include any judge who is in line to become the CJI in the future. Justices Bagchi and Pancholi are in line of succession for the CJI’s office.
The court was dealing with a batch of petitions filed last year, contending that the exclusion of the CJI from the panel undermined the independence of the appointment process.
The Centre had on February 17 last year proceeded with the appointment of Gyanesh Kumar as the chief election commissioner despite the pendency of the batch of PILs challenging the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which sought to exclude the CJI from the selection panel to pick the CEC.
The PIL petitioners, which include Madhya Pradesh Congress leader Jaya Thakur, ADR, Trinamool Congress leader Mohua Moitra and others, had challenged the 2023 legislation on the ground that it was contrary to a judgment delivered by a five-judge constitution bench in the Anoop Baranwal case, wherein the apex court had mandated that the selection committee for the appointment of the CEC and the ECs must comprise the Prime Minister, the CJI and the leader of the Opposition.
However, the 2023 law introduced by the NDA government replaced the CJI with a “cabinet minister” on the selection panel.
Earlier, the Centre had in the apex court defended the appointments under the 2023 law, saying the independence of the Election Commission does not arise from the presence of a judicial member on the committee.
Hearing on the present batch of petitions challenging the law has witnessed around 15 adjournments since last year.
When the matter came up for hearing on Friday, CJI Kant orally observed: “I will be accused of conflict of interest. There is a conflict of interest.”
Bhushan intervened to say: “I personally don’t have any problem and nobody will accuse your Lordship of anything, but I had this aspect in mind of conflict of interest. So it can be listed before a bench not having a prospective CJI.”
Accepting the suggestion, the CJI directed that the matter be listed before another bench on April 7 and indicated that the new bench would comprise judges who are not in line to assume the office of the CJI.