The Supreme Court on Wednesday adjourned the hearing on a batch of petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which excludes the Chief Justice of India (CJI) from the panel responsible for selecting the Chief Election Commissioner (CEC) and other Election Commissioners.

A bench comprising Justice Surya Kant and Justice Nongmeikapam Kotiswar Singh said the petitions might be listed for hearing next week, depending on their schedule, as the bench is currently dealing with a part-heard matter before a three-judge bench scheduled for Thursday, May 15.

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“We wish we could work 24 hours. After reading 50 files per night… how much energy is left to hear this regular matter?” Justice Kant remarked, responding to Advocate Prashant Bhushan, appearing for the NGO Association for Democratic Reforms (ADR), who urged the court to hear the matter across two days (May 14 and 15).

The petitions, filed by ADR, Jaya Thakur (General Secretary of Madhya Pradesh Mahila Congress), Sanjay Narayanrao Meshram, and advocate Gopal Singh, challenge the exclusion of the CJI from the selection panel. They question the constitutional validity of Sections 7 and 8 of the 2023 Act.

Section 7 of the Act states that the CEC and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee comprising the Prime Minister as Chairperson, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.

Section 8 allows the Selection Committee to regulate its own procedure in a transparent manner for selecting the CEC and Election Commissioners. It also permits the Committee to consider candidates not included in the panel suggested by the Search Committee.

The petitioners contend that removing the CJI from the selection panel and replacing the position with a Union Cabinet Minister—nominated by the Prime Minister—tilts the process in the government’s favour and opens it to partisan influence.

They have referred to the Supreme Court’s March 2, 2023 Constitution Bench ruling, which held that, until Parliament enacts a law, the appointments of the CEC and ECs should be made by a committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India, ensuring independence, impartiality, and constitutional propriety.

The 2023 law, the petitioners argue, overrides that judicial arrangement and undermines the spirit and intent of the ruling.

“By excluding the CJI from the appointment process, the judgment of this Court has been undermined, and the constitutional requirement of an independent and impartial Election Commission has been compromised,” the petitioners have submitted.

They emphasized that free and fair elections—being part of the basic structure of the Constitution—cannot be guaranteed if the central government dominates the selection process for Election Commission members.

In 2023, the Supreme Court declined to stay appointments made under the new Act but agreed to examine its constitutional validity. Earlier, on January 12, 2024, a bench comprising Justice Sanjiv Khanna (who later became CJI and has since retired) and Justice Dipankar Datta issued notice to the Central government but refused to stay the operation of the law.

On December 3, 2024, then Chief Justice Sanjiv Khanna recused himself from hearing the challenge to the 2023 law.