The Supreme Court on Wednesday turned down the Centre’s request to adjourn a batch of PILs challenging its decision to exclude the Chief Justice of India from a selection committee responsible for appointing the chief election commissioner and other election commissioners.
“This matter is more important than any other matter,” Justice Dipankar Datta, heading a bench, told solicitor-general Tushar Mehta, who sought adjournment citing his preoccupation with a hearing on the Sabarimala row before a nine-judge constitution bench headed by CJI Surya Kant.
The present batch of petitions has witnessed around 15 adjournments since last year.
Despite 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, the Centre had on February 17 last year proceeded with the appointment of Gyanesh Kumar as the CEC.
When the matter came up for hearing on Wednesday before the bench, Mehta requested that the hearing be adjourned till next week.
However, Justice Datta turned down the plea, saying the request could have been considered if it was made a week ago. “But we fixed this hearing a month back. A nine-judge bench matter will not get over next week. Let your associates take notes today. Let the petitioners start. All matters are important,” Justice Datta orally observed.
The bench suggested that Mehta could come back to the court during the post-lunch session and lawyers representing the petitioners could commence arguments in
the meantime.
“Today we will not hear any other matter apart from this,” the bench said as it
formally commenced the hearing.
Starting the arguments on behalf of Congress leader Jaya Thakur, one of the petitioners, senior advocate Vijay Hansaria referred to Section 7 of the 2023 Act granting primacy to the executive in the selection of the CEC and other ECs contrary to the law laid down by the five-judge constitution bench in the Anoop Baranwal case.
The apex court ruling in the Anoop Baranwal case had mandated the inclusion of the Prime Minister, the CJI and the leader of the Opposition in the selection committee for the appointment of the CEC and the ECs. But the 2023 law brought in by the NDA government had replaced the CJI with a “cabinet minister”.
Hansaria submitted that an amended law could only remove the basis of a judgment of the constitutional court but could not “directly or indirectly overrule the judgment”.
“Granting final say to the executive in the appointment is an anathema to the independent of Election Commission,” he argued.
The senior counsel submitted that the poll body should be kept beyond the control of the Union government to retain its independence. “The ruling party has an inherent and direct interest in the outcome of the results of the election conducted by the Election Commission of India,” Hansaria said.
However, the bench wondered whether it could direct Parliament to include the CJI in the selection panel, as the prerogative to enact legislation fell within the purview of the legislature.
The bench further said the judgment in the Anoop Baranwal case clearly stated that
it would be in force till Parliament enacted a new law. The arguments will continue on Thursday.
