The Supreme Court has scheduled February 12 for hearing petitions challenging the appointment process of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) under the Chief Election Commissioner and Other Election Commissioners Act, 2023.

A bench comprising Justice Surya Kant and Justice N Kotiswar Singh stated that the matter would be decided on merit and finally resolved.

Advocate Prashant Bhushan, representing the NGO Association for Democratic Reforms (ADR), emphasized the urgency of the matter, pointing out that the current CEC, Rajiv Kumar, is set to retire on February 18. He noted that the case was originally listed for February 4 but was unlikely to be heard due to other pending matters.

Bhushan argued that the Supreme Court’s 2023 verdict had ruled that EC appointments should not be solely at the discretion of the government but should be made by an independent committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI). However, he pointed out that the 2023 law removed the CJI from the selection panel and replaced them with a minister, effectively granting the government control over the appointments.

"This goes against the principles set by the Constitution Bench and threatens the integrity of electoral democracy," Bhushan contended.

Solicitor General Tushar Mehta, appearing for the Centre, opposed Bhushan’s request for an interim order. He pointed out that a separate Supreme Court bench had earlier declined to pass such an order and reiterated that the Centre was prepared for arguments whenever the court deemed fit.

Background of the Case

On January 8, the Supreme Court acknowledged the conflict between judicial review and legislative authority and agreed to hear the case. Previously, on March 15, 2024, the top court had refused to stay EC appointments under the 2023 law, which removed the CJI from the selection panel. The court had deferred hearings on multiple petitions challenging these appointments.

The ADR’s plea argues that the exclusion of the CJI from the selection panel allows undue executive influence over the Election Commission, undermining its independence. The petition alleges that the government effectively overruled the Supreme Court’s March 2, 2023, verdict without addressing its core reasoning.

In 2024, a selection panel chaired by Prime Minister Narendra Modi, under the new law, recommended former IAS officers Gyanesh Kumar and Sukhbir Sandhu for appointment as ECs. The ADR challenged this process and sought a stay on Section 7 of the 2023 Act, which excludes the CJI from the panel.

The petitioners argue that keeping EC appointments under executive control weakens democracy and free and fair elections. Congress leader Jaya Thakur also filed an application seeking the implementation of the 2023 Supreme Court verdict, urging the Centre to follow the three-member committee model while making EC appointments.

With the Supreme Court set to hear the matter on February 12, the case could have significant implications for the independence of India’s Election Commission.