CJI recuses from hearing on CEC, EC appointments

Chief Justice of India Surya Kant on Friday recused himself from hearing a batch of petitions challenging the constitutional validity of a 2023 law that removed the CJI from a committee responsible for appointing the chief election commissioner and the ECs to the poll panel.

“I will be accused of conflict of interest. There is a conflict of interest,” the CJI, who was sitting alongside Justices Joymalya Bagchi and Vipul M Pancholi, said at the outset.

The bench was hearing PILs challenging the validity of certain provisions of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, on the ground that it excluded the Chief Justice of India from the selection panel responsible for appointing CEC and the ECs.

The CJI said it would be appropriate for the case to be heard by a bench where no judge is in line to become the chief justice. Advocate Prashant Bhushan, appearing for one of the petitioners, supported the CJI’s view.

He suggested that the matter be placed before a bench without any prospective chief justice to avoid any perception of bias. “I personally don’t have any problem, but it can be listed before a bench not having a prospective CJI,” Bhushan said.

Accepting the suggestion, the CJI directed that the matter be listed before another bench on April 7 and indicated that the new bench would comprise judges who are not in line to assume the office of the CJI.

The law, enacted by Parliament in December 2023, came months after a landmark verdict by which the apex court directed that election commissioners be appointed by a committee comprising the prime minister, the leader of the Opposition, and the chief justice of India. The bench had said that the system will remain in force till a law is enacted.

Under the 2023 Act, the selection committee consists of the prime minister, a Union Minister nominated by the prime minister and the leader of the Opposition (or leader of the largest opposition party in the Lok Sabha). The PILs said the exclusion of the CJI from the panel undermines the independence of the appointment process.

The law has been challenged by multiple petitioners, including Congress leader Jaya Thakur and the Association for Democratic Reforms.

Earlier, the Centre defended in the Supreme Court the appointment of two new election commissioners under the 2023 law that excludes the chief justice of India from the selection committee, saying the independence of the Election Commission does not arise from the presence of a judicial member on the committee.

In an affidavit filed in the apex court, the Union Law Ministry rejected the petitioner’s claim that the two election commissioners were hastily appointed on March 14, 2024, to “pre-empt” the orders of the top court the next day, when the matters challenging the 2023 law were listed for hearing on interim relief. The apex court also refused to stay the appointment of new election commissioners under the 2023 law.

A five-judge constitution bench had in March 2023 ruled that the chief election commissioner and election commissioners shall be appointed on the advice of a committee comprising the prime minister, the leader of the Opposition in the Lok Sabha and the chief justice of India.