The Supreme Court today  has issued a notice in response to a petition filed under Article 32, seeking to declare Sections 7 and 8 of The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions, of Service and Term of Office) Act, 2023 as ultra vires under Articles 14, 21, 50, and 324 of the Constitution of India.

The petitioner, Congress Leader Jaya Thakur, contends that these provisions are in direct contravention to a March 2023 direction of a Constitution Bench in Anoop Baranwal vs. Union of India, which had directed the appointment of an Election Commissioner to be based on the recommendation of a committee comprising the Prime Minister, Leader of the Opposition in the Lok Sabha, and the Chief Justice of India.

A panel comprising Justices Sanjiv Khanna and Dipankar Datta presided over the hearing of the writ petition. The petition challenges the constitutionality of the Election Commissioners' Act, which received approval in December during the parliamentary winter session and was subsequently enacted into law by President Droupadi Murmu.

At the beginning of the proceedings, Justice Khanna inquired whether the senior counsel had provided an advanced copy of the petition to the respondent union government and the election commission. Senior Advocate Vikas Singh responded, stating that there is no such system in the Supreme Court, unlike in the high court. Justice Khanna instructed him to serve an advanced copy, to which Singh agreed. Despite Singh urging the court for an interim stay on the new law, the bench outrightly refused, stating, "There will not be a stay. Please, we can't stay a statute like this." However, he assured the issuance of a notice. Upon the senior counsel's request for a 'short date,' the bench agreed to schedule the hearing for April.

According to the challenged Sections, the appointment to the posts of Chief Election Commissioner and Election Commissioners is to be carried out by the President of India, based on the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister. The controversy arises from the exclusion of the Chief Justice of India from this Committee.

The petitioner further contends that these provisions compromise the independence of State institutions supporting constitutional democracy, as they lack an independent mechanism for the appointment of their heads and members. The exclusion of the Chief Justice of India raises concerns about the potential for external influence, potentially compromising the neutrality of these institutions in carrying out their assigned functions.

During today's hearing, Singh asserted that the Act in question constituted a breach of the doctrine of the separation of powers, a fundamental element of our Constitution's basic structure.

The plea suggests that the exclusion of the Chief Justice of India from the Committee may impact the free and fair election process, as the Prime Minister and their nominee would be decisive factors for all appointments made through the ruling party. Thakur emphasizes the need for an unbiased and transparent appointment process to ensure the integrity of the election system.

The plea also alleges that the newly enacted law violates the principle of free and fair elections by lacking an "independent mechanism" for the appointment of Election Commission members.The petitioner emphasizes that the law excludes the Chief Justice of India (CJI) from the appointment process, diluting the Supreme Court's earlier ruling.

The exclusion of the CJI from the appointment process, as argued by the petitioner, leaves the Prime Minister and their nominee as "the deciding factor" in these crucial appointments, potentially compromising the impartiality of the Election Commission. The petitioner's counsel further contended that the law infringes upon the principle of separation of powers.

Case: Dr Jaya Thakur and ors vs Union of India and anr.