CJI recuses self from CEC selection case

Chief Justice of India Sanjiv Khanna on Tuesday recused himself from hearing PILs challenging a recently enacted law that excludes the CJI from the three-member panel selecting the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

The law replaces the CJI with Union Cabinet Minister in the selection process. Presiding over the Bench with Justice Sanjay Kumar, CJI Khanna informed the petitioners’ lawyers about his decision to withdraw from the case.

“List the matter before a bench of which I am not a part of,” he said. Senior advocate Gopal Sankaranarayanan and advocate Prashant Bhushan representing the petitioners’ lawyers, expressed no objection to CJI Khanna continuing to hearing the matter, noting that the previous Bench led by him had issued the notices on the case.

However, Justice Khanna said that the matter would be listed before a different Bench in the week commencing January 6, 2025. The Bench also directed the Centre and the Election Commission to file their responses to the PILs. The Supreme Court had earlier, on February 13 declined the implementation of the newly-enacted law. The Bench had, however, issued notice to the Centre on Association for Democratic Reform’s PIL challenging the validity of the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service and Term of Office) Act, 2023, notified in the official gazette on December 28, 2023.

The ADR argued that the law contravenes a Constitution Bench verdict which directed the inclusion of the CJI in the three-member selection panel to appoint the CEC and ECs. Another PIL filed in January by Madhya Pradesh Congress leader Jaya Thakur, also challenges the law, alleging it grants excessive powers to the Centre by eliminating the CJI from the panel.

Besides Thakur, Gopal Singh, an advocate, had also challenged the validity of the law. The Supreme Court’s decision on March 2nd, 2023, ended the 73-year-old practice of the government-appointed Chief Election Commissioner and Election Commissioners.

In a unanimous verdict, a five-judge Constitution Bench led by Justice KM Joseph (now retired) had directed the creation of a three-member panel comprising the Prime Minister, Leader of Opposition in the Lok Sabha (or leader of largest opposition party) and the CJI. However, he said, “This norm will continue to hold good till a law is made by Parliament.”