Amid CEC appointment controversy, SC defers hearing on pleas against 2023 law

The adjournment came after solicitor general Tushar Mehta, representing Union government, sought more time due to his engagement in a constitution bench matter

The Supreme Court on Wednesday deferred the hearing of multiple petitions challenging the validity of the 2023 law governing the appointment of the chief election commissioner (CEC) and election commissioners (ECs) even as Gyanesh Kumar took over as India’s next CEC amid opposition from the Congress party that cited the pendency of the case.

A Supreme Court bench led by justice Surya Kant had agreed on Tuesday to consider an expedited hearing of the case (File Photo)

The adjournment came after solicitor general (SG) Tushar Mehta, representing the Union government, sought more time due to his engagement in a constitution bench matter. The court is yet to announce a fresh date for the hearing.

A bench led by justice Surya Kant had agreed on Tuesday to consider an expedited hearing of the case after advocate Prashant Bhushan, representing one of the petitioners, argued that the matter was of crucial importance for Indian democracy. However, when proceedings commenced on Wednesday, Mehta requested an adjournment, citing his involvement before another bench in a case concerning the court’s power to modify arbitral awards.

Bhushan opposed the request, arguing that “every matter cannot be adjourned just because the solicitor general is not available”. He pointed out that the central government has a total of 17 law officers, and that some other law officer could present arguments in Mehta’s absence. In response, Mehta declined to engage in the exchange, stating that he would “not stoop that low”.

At this point, the bench, also comprising justice N Kotiswar Singh, intervened to accommodate Mehta’s request, indicating that the hearing could be rescheduled if he was unable to conclude his other case within the day. Ultimately, the case was adjourned as Mehta remained engaged before the constitution bench.

The 2023 law governing the appointment of the CEC and ECs has been the subject of intense debate, most recently after the appointment of Kumar who is the first CEC to be appointed under the new law. Kumar, a former IAS officer from the Kerala cadre (1988 batch), was previously secretary in the Ministry of cooperation and was appointed as an election commissioner last year. His elevation as CEC was finalised on Monday night by a selection panel led by Prime Minister Narendra Modi, which also includes Union home minister Amit Shah and Leader of Opposition (LoP) Rahul Gandhi. Gandhi opposed the selection process, citing the pendency of the case in the Supreme Court.

The challenge to the 2023 law stems from a May 2023 Constitution bench judgment, which held that the selection of the CEC and ECs should be done by a committee comprising the PM, LoP, and the Chief Justice of India (CJI) to ensure transparency. To be sure, the court verdict came in the absence of a specific law to appoint the CEC and ECs. The new law, passed in December 2023, replaced the CJI with a Union minister, leading critics to question the independence of the selection process and alleging that it gives the Executive an overwhelming 2-1 majority in appointments – something the Constitution bench ruling disapproved of.

The petitions, filed by Congress leader Jaya Thakur, NGOs such as the Association for Democratic Reforms (ADR), Lok Prahari, and PUCL, among others, argue that the law violates the principle of separation of powers. The petitioners contend that by excluding the CJI from the selection committee, the Executive has gained undue control over the election process, undermining the independence of the Election Commission and the constitutional mandate for free and fair elections.

When the petitions were taken up in January and February 2024, the petitioners pressed for an interim stay on the law and urged the court to restrain the government from making new appointments under the amended procedure. However, the Supreme Court refused to grant a stay at that stage, instead issuing a formal notice to the Union government.

On Tuesday, Bhushan pushed for out-of-turn listing of the matter, given the recent appointment of Kumar and the concerns over the selection process. Though the bench did not pass a formal directive, it had assured the petitioners that the case could be taken up on priority upon mentioning. However, the adjournment on Wednesday has once again delayed the resolution of the challenge to the law, leaving the questions over its constitutionality and impact on electoral independence in limbo.