Can courts direct Parliament to include CJI in EC selection panel, asks Supreme Court

New Delhi [India], May 6 : The Supreme Court on Wednesday questioned whether it can direct Parliament to enact a law mandating the inclusion of the Chief Justice of India (CJI) in the selection panel for appointing Election Commissioners.

A bench of Justices Dipankar Datta and Satish Chandra Sharma said, "It is a prerogative of the Parliament to make the law. Courts cannot direct the Parliament to make a law."

The apex court was hearing a batch of petitions challenging the validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which removed the CJI from the selection panel for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

During the hearing, a counsel appearing for one of the petitioners contended that the Act gives primacy to the executive and is contrary to the Constitution Bench judgement, which laid down a process in which appointments had to be made by a committee comprising the Prime Minister, the Leader of Opposition (LoP), and the Chief Justice of India.

The bench also said that its judgment, which allows the CJI in the selection panel, was an arrangement made in the absence of a law. "The court said certain norms should be laid down to be followed till law is laid down. When a law is framed, can you say these norms are not being followed?" asked the judges.

The petitioners contended that the 2023 Act effectively ensures that candidates favoured by the Prime Minister would be appointed, thereby undermining the independence of the Election Commission. They argued that the selection process should not be controlled by the ruling party, counsel added.

The hearing in the case will continue on Thursday.

Today, when the case was taken up for hearing, Solicitor General Tushar Mehta, appearing for the Central government, requested the bench to keep the case next week, saying he was occupied with the Sabarimala reference case before a nine-judge bench of the Supreme Court.

The bench, however, refused to adjourn the case, saying this case was "more important than any other case".

In 2024, the apex court had declined to put on hold the two Election Commissioners' appointment under the Chief Election Commissioner and Other Election Commissioners Act, 2023.

The pleas were filed in the apex court seeking a stay on the Act by the Association for Democratic Reforms (ADR) and Jaya Thakur (General Secretary of the Madhya Pradesh Mahila Congress Committee), Sanjay Narayanrao Meshram, Dharmendra Singh Kushwaha, and advocate Gopal Singh.

The pleas challenged the Election Commissioners' law that has dropped the Chief Justice of India from the selection panel for appointing CEC and other Election Commissioners (ECs).

The petitions stated that the provisions of the enactment are violative of the principle of free and fair elections since it does not provide an "independent mechanism" for the appointment of the members of the Election Commission of India (ECI).

The petitions said the Act excludes the Chief Justice of India from the process of appointment of the members of ECI and it's in violation of the March 2, 2023 verdict of the top court which had ordered that the appointment of members of the ECI be done on the advice of a committee comprising the Prime Minister, the CJI and the Leader of Opposition in Lok Sabha till a law is made by the Parliament.

By excluding the CJI from the process, the judgement of the Supreme Court stands diluted as the Prime Minister and his nominee will always be "the deciding factor" in the appointments, said the petitions.

The petitions in particular challenged Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The provisions lay down the procedure for the appointment of ECI members.

They sought direction to the Centre to include the Chief Justice of India in the selection committee for the appointment of the CEC and ECs, which currently comprises the Prime Minister, the Leader of the Opposition in Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.

The Act replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

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