CJI Sanjiv Khanna on Tuesday recused himself from hearing a batch of petitions challenging the validity of Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023, that excludes the Chief Justice of India from a panel for the selection of the Chief Election Commissioner and the Election Commissioners.

The batch of petitions were listed before a bench comprising Chief Justice Sanjiv Khanna and Justice Sanjay Kumar. However, when the matter came up for hearing the CJI Khanna recused himself from hearing the matter.

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“List the matter before a bench of which I am not a part of,” said the CJI Khanna directing that the matter be listed in the week commencing on January 6, 2025.

The bench also asked the parties to complete their pleadings by the next date of hearing.

The top court was moved by NGO the Association for Democratic Reforms (ADR), Jaya Thakur – General Secretary of the Madhya Pradesh Mahila Congress Committee, Sanjay Narayanrao Meshram, and Dharmendra Singh Kushwaha, and advocate Gopal Singh challenging the law.

Earlier this year – on January 12, 2024 – a bench comprising Justice Khanna (now CJI) and Justice Dipankar Datta while issuing notice to the Central government on the petitions, had refused to stay the operation of the law, that diluted the March 2, 2023, unanimous judgment by a five-judge constitution bench directing the appointment of the CEC and the ECs on the recommendation of a selection panel comprising the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.

Justice Sanjiv Khanna was sworn in as Chief Justice of India on November 11, 2024.

Under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023, that was notified on December 28, 2023, the penal for the selection of CEC and the ECs would include the Prime Minister, Leader of Opposition, and a Central Minister to be nominated by the Prime Minister, thereby giving a clear majority to the government in the selection panel.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill 2023, was passed by Rajya Sabha on December 12 and the Lok Sabha on December 21, 2023, amidst the suspension of a large number of opposition law-maker in the lower house.

The petitioners have stated that the provisions of the new law, are violative of the principle of free and fair elections since it does not provide an “independent mechanism” for the selection of the CEC and the ECs.  (ECI).

Excluding the Chief Justice of India from the selection 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, the petitioners have said questioning the validity of the law.

The petitioners in particular have challenged Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, that lays down the procedure for the appointment of the CEC and the ECs.

The 2023 law replaced the earlier Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.