The Supreme Court on Friday refused to stay the new law governing the appointment and service conditions of the chief election commissioner and other election commissioners, Bar and Bench reported.

A bench of Justices Sanjiv Khanna and Dipankar Datta said that it cannot issue a stay order after senior advocate Vikas Singh, who is representing the petitioner, conceded that the respondents have not been served a copy of the plea.

The bench then issued a notice to the Central government and the Election Commission.

The petition challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, has been filed by Congress leader Jaya Thakur.

The new law aims to constitute a selection committee for the appointment of the election commissioners, consisting of the prime minister (as chairperson), the leader of the Opposition in the Lok Sabha and a Union Cabinet minister nominated by the prime minister.

The law does away with the arrangement put in place by a Supreme Court judgement delivered in March that had formed a selection committee consisting of the prime minister, the Leader of the Opposition in the Lok Sabha and the chief justice of India, until Parliament came up with a law.

The Supreme Court had formed this committee to shield the Election Commission from executive influence.

Thakur, in her the petition, has argued the Act violates the principle of free and fair elections since it does not provide an independent mechanism for appointiing the members of the poll panel, the Bar and Bench report reported.

According to the procedure prescribed by the law, a search committee consisting of three bureaucrats from the Union government will prepare a list of five persons for the consideration of the selection committee. The election commissioners will be appointed from the names in this list.

The bill provides the following qualifications for appointment as chief election commissioner or election commissioner:

  1. Currently holding or has previously held a post equivalent to the rank of Union Secretary
  2. A person of integrity
  3. Possessing knowledge of and experience in management and conduct of elections.

There are no objective criteria laid down to determine how the second and third qualifications can be met, leaving them to the subjective view of the search committee.

With regard to the constitution of the selection committee, the Act clarifies that if there is no recognised leader of Opposition in the Lok Sabha (as is the case in the current Lok Sabha), the leader of the single largest Opposition party in the Lok Sabha shall be deemed the member of the selection committee as leader of Opposition.

The petition also contended that the Act violates the Supreme Court judgement as it excludes the chief justice from the process of appointment of the members of the Election Commission and makes the prime minister and his nominee “the deciding factor” in the appointments.

The law runs against the principle of separation of powers, the petitioner’s counsel submitted before the court on Friday.