Manas Dasgupta
NEW DELHI, Dec 3: The Chief Justice of India Sanjiv Khanna on Tuesday recused himself from hearing a batch of pleas challenging the exclusion of the CJI from the panel meant for selecting the chief election commissioner and election commissioners.
At the outset, CJI Khanna, who was sitting on the bench with Justice Sanjay Kumar, told the advocates appearing for the petitioners that he could not hear the pleas now. He said the cases will now be listed before another bench after the winter break. The matter on the law removing the holder of India’s highest judicial post from a panel for the selection of ECI and ECs will now heard by anther bench from January 6.
Chief Justice Khanna – then a Justice of the Supreme Court – was part of the two-judge bench that began hearing those petitions in March and subsequently passed an interim order. Now, however, Mr Khanna said it is a “different scenario”, referring to his appointment as the CJI last month.
Last year the Supreme Court – in a judgement meant to insulate the Election Commission from interference by the Legislature – said Chief Election and Election Commissioners would be appointed by a three-member panel of the Prime Minister, the Leader of the Opposition, and the Chief Justice.
However, months later the government introduced and passed – in a Winter Session of Parliament even as most of the opposition was suspended – the Chief Election Commissioner and other Election Commissioners Bill, which dropped the CJI in favour of a union minister to be named by the PM. The move was challenged – days before the April-June federal election by opposition politicians, like the Congress’ Jaya Thakur, and civil society groups, such as the Association for Democratic Reforms.
Then-Justice Khanna and Justice Dipankar Datta refused to stay the new law. All of this played out when the Election Commission had two vacancies; Election Commissioner Arun Goel resigned in March, days after his colleague, Anup Chandra Pandey, also stepped down. That left only Chief Election Commissioner Rajiv Kumar on the panel with the Lok Sabha poll just weeks away.
Pleas were filed against this new law that effectively excluded the CJI. A prime argument is that the new selection panel has a 2:1 ratio in favour of the government leaving it imbalanced.
Several persons, including an NGO, have challenged the validity and sought a stay on the operation of Section 7 of the Chief Election Commissioner and other Election Commissioners Act, 2023, which excludes the CJI from the panel that picks the CEC and ECs.
The changed rules to appoint election commissioners were red-flagged by the opposition, which accused the ruling party of a “systematic decimation” of government institutions. Critics of the new law – which replaced the Chief Justice – demanded his/her inclusion to balance out any potential conflict of interest that might be raised by the presence of politicians on the appointment panel.
The government, meanwhile, opposed any challenges to, or court-ordered stay on, its law, arguing that such measures were politically motivated and “created only on basis of unsupported and pernicious statements”. Individuals holding high office, it said, are “presumed to act fairly.”
The controversy over the CEC Bill did not, however, stop the government from naming replacements to Mr Goel and Mr Pandey; Gyanesh Kumar and Sukhbir Singh Sandhu were appointed instead.
Senior advocate Gopal Sankaranarayanan and lawyer Prashant Bhushan said the previous bench headed by Justice Khanna had passed interim orders in the matter. The CJI asked the Centre and others to file the responses to the PILs in the meantime.
