Supreme Court Bench indicated on Wednesday (February 19, 2025) petitions challenging the legality of a new law which gave the Centre a dominant role in the appointment process of the Chief Election Commissioner (CEC) and election commissioners (ECs) could be heard on March 19, 2025 as there were no dates in between.
The postponement from a Bench headed by Justice Surya Kant came in response to an oral mentioning made by advocate Prashant Bhushan, representing the NGO Association for Democratic Reforms, that a new CEC and an EC had already been appointed under the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023.
Mr. Bhushan urged the court for an early hearing, saying the case was of seminal importance and would not take up much time. He said the petitioners would take up only an hour of the court’s time. The Bench appeared non-committal to the request for a date earlier than March 19.
The petitions have challenged the legality of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023, which circumvents a Constitution Bench judgment in Anoop Baranwal versus Union of India, mandating the inclusion of the Chief Justice of India in the Selection Committee involved in the appointment process of the CEC and ECs.
The 2023 Act replaced the CJI with a Union Minister on the Selection Committee, giving the government a dominant role in the appointments to the Election Commission of India.
The petitioners have orally raised the issue of the recent appointments of the new CEC and EC Gyanesh Kumar and Vivek Joshi, respectively, by employing the 2023 law. Mr. Bhushan has pointed out that the appointments were made while the petitions challenging the law were pending in the apex court. The court, however, on February 12, had not expressly objected or stopped the government from using the law to make the new appointments, necessary with the looming retirement of CEC Rajiv Kumar on February 18. Earlier, the court had also refused to stay the implementation of the law.
Election Commissioner Gyanesh Kumar was appointed CEC on February 17. Mr. Kumar is the first CEC to be appointed under the 2023 law. His term would run till January 26, 2029, days before the Election Commission of India is expected to announce the schedule of the next Lok Sabha election. Vivek Joshi, a 1989-batch Haryana-cadre IAS officer, was appointed as an Election Commissioner. His tenure in office would end in 2031.
The case was listed before the Bench on February 19. However, earlier in the day, Solicitor General Tushar Mehta urged the court for an adjournment as he was caught up in a Constitution Bench hearing. Mr. Bhushan had objected to the request, saying that a case as important as this one ought not to be adjourned solely due to the unavailability of the Solicitor General. Mr. Bhushan said any one of the 17 law officers in the Supreme Court could appear for the Union government.
