Cost Of Supreme Court's 2-Year-Plus Delay In Deciding CEC Appointment Case

On September 29, the Supreme Court bench of Justices Dipankar Datta and Satish Chandra Sharma referred pleas challenging the 2023 law governing the appointment process for the Chief Election Commissioners and Election Commissioners to a larger bench.

While Justice Datta viewed the Union's demand for a larger bench reference as unwarranted, Justice Sharma observed otherwise. Later, propriety questions came to be raised on Justice Sharma presiding over the matter, as it was discovered that the judge's son is the Standing Counsel for ECI before the Madhya Pradesh High Court.

Prior to this pronouncement however, the matter witnessed repeated adjournments, despite involving a key constitutional issue. The petitioners time and again emphasised that the challenge was squarely covered by the Court's Anoop Baranwal judgment, but the Court failed to return a decision, one way or the other, for over 2 years (January 2024 to September 2026). 

As an outcome of this delay, at least 3 persons came to be appointed as Election Commissioners under the CEC Act. In fact, CEC Gyanesh Kumar, whose conduct as ECI Chief has met controversy with allegations pertaining to the SIR exercise, became the first CEC to be appointed under the 2023 law. Notably, when ex-CEC Rajiv Kumar was due to retire, the Court had assured that it would hear the matter before appointment of a new CEC, but it failed to do so. Eventually, EC Gyanesh Kumar came to be appointed as CEC. 

In this backdrop, we explore in this article the delay occasioned by the Supreme Court in hearing the CEC Act matter. 

The genesis of the dispute

On March 2, 2023, the Supreme Court delivered the judgment in Anoop Baranwal v. Union of India, holding that until the enactment of a law by the Parliament in that regard, Election Commissioners shall be appointed by the President of India on the advice of a Committee consisting of the Prime Minister, the leader of Opposition in the Lok Sabha (or leader of largest opposition party), and the Chief Justice of India.

The Court passed this direction to ensure that the ECs are appointed in an independent manner, free of influence by the executive. The direction was of interim nature, to hold the field unless the Parliament enacted a law for appointment of ECs in furtherance of Article 324 of the Constitution. 

In December 2023, the Parliament enacted the Chief Election Commissioner and Election Commisisoners (Appointment, Conditions of Service & Terms of Office) Act, 2023, stipulating that Election Commissioners must be selected by a committee consisting of the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition or the leader of the largest opposition party in the Lok Sabha.

Coming into effect in January 2024, this law triggered a cascade of litigation, with Congress leader Dr Jaya Thakur, the Association for Democratic Reforms, and others approaching the Supreme Court. The petitioners argued that the replacement of the CJI with a Union Minister (to be nominated by the Prime Minister), undermined the independence of the Selection Committee. It was contended that the law would facilitate undue executive influence in the process of appointing ECs and CECs, and ultimately, the electoral process.

Initial hearings before Supreme Court and refusal to stay

The first petition challenging Section 7 of the CEC Act came up before then Justice Sanjiv Khanna (ex-CJI) and Justice Dipankar Datta on January 12, 2024. Stay of the provision was sought, but the bench orally declined. Notice was made returnable in April.

On February 13, 2024, issuing notice on another petition (filed by Association for Democratic Reforms), Justices Khanna and Datta again orally declined to stay the operation of Section 7(which lays down the appointment process). The petition was tagged with the pending case (Dr Jaya Thakur's) to come up in April.  

In the interregnum, two vacancies of Election Commissioners post arose, as EC Anup Chandra Pandey demitted office on 14 February and EC Arun Goel resigned on 9 March. After shortlisting, the Search Committee sent 6 names to the Selection Committee. On 14 March, Gyanesh Kumar and Sukhbir Singh Sandhu were appointed as ECs.

A week later, on March 21, 2024, Justices Khanna and Datta passed a detailed order refusing to stay the operation of Section 7 of CEC Act, noting that such an interim order would lead to chaos and disturb the (then upcoming) Lok Sabha Elections. The matter was then posted to August. In August, the authorities entered appearance and sought 6 weeks' time. The matter was then posted for final hearing/disposal in November.

Supreme Court flagged procedure of appointment of Gyanesh Kumar & Sukhbir Singh Sandhu

Although Justices Khanna and Datta declined to stay the operation of Section 7, they expressed “concern” about the procedure of appointment of the incumbent ECs (Gyanesh Kumar and Sukhbir Singh Sandhu), insofar as only 6 (not 10) candidate names were sent by the Search Committee to the Selection Committee. 

Considering further the submission of the Leader of Opposition (Adhir Ranjan Chowdhury) that the names and particulars of the candidates were not timely circulated for consideration, the bench questioned how 6 out of 200 candidates could be shortlisted in a few hours. It was observed that EC selections should be made after circulation of full particulars of candidates to all members of the Selection Committee.

“Inspite of the shortcoming”, the bench however did not deem it appropriate to pass any direction. It noted that remanding the matter at that stage (as Lok Sabha elections were coming) would not resolve the issue. Also, it viewed as necessary the presence of 2 more ECs for ensuring proper "check and balance".

Multiple adjournments before Justice Surya Kant

In December, 2024, Justice Khanna, having assumed the CJI office, recused from the matter and sent it to Justice Surya Kant's bench. On January 7, 2025, Justice Kant's bench posted the matter to February 4. On January 8, Prashant Bhushan mentioned the matter highlighting that CEC Rajiv Kumar was due to retire in February (February 18). In response, Justice Kant's bench expressed inclination to hear the matter on February 4, asking the counsel to remind about the same on February 3.

On February 3, though Bhushan mentioned the matter, pointing out that CEC Rajiv Kumar was due to retire on February 18, Justice Kant's bench listed it on February 12. On February 12, the matter was again not heard. Justice Kant's bench passed an order saying that it should not be deleted on the notified date (February 19).

In the interregnum however, EC Gyanesh Kumar was appointed as CEC (February 17). On February 18, the petitioners beseeched the Court to hear the matter on February 19. But on that date, SG Tushar Mehta sought an accommodation, saying that he was occupied in a Constitution Bench matter before then CJI Sanjiv Khanna. Bhushan opposed the prayer for accommodation saying that the matter ought not to be held up only because the SG was engaged in another matter. But Justice Kant said that the bench would accommodate if SG did not get free from the CB matter.

As it turned out, the bench proceeded with the other matters. Later, the pleas were mentioned twice, however, were not taken up for hearing. When one of the counsels claimed that the hearing of the petition(s) was important for the survival of democracy and Executive-dominated appointment of ECs was affecting 140 crore people in the country, Justice Kant responded, "All matters are very important. We don't think that any matter is [superior]". Before rising, the judge told Bhushan to "take a chance" on March 19.

The matter then came up on March 19, but at serial No. 38. Bhushan mentioned it in the morning, apprehending that it was unlikely to reach its turn. The counsel sought priority listing on another day. In return, Justice Kant expressed inclination to wrap up the matter in 1 day and said minimal urgent listings would be done for the said day to ensure hearing of this matter.

On the next date (April 16), the matter was listed at serial No. 31. Bhushan mentioned it again, highlighting that it may not reach. Justice Kant's bench then adjourned the matter to May, to come up specifically at 2 PM. On May 14, the matter was however again adjourned - to July 24. On the said date, the matter got adjourned to September 25.

The matter thereafter came up on October 14. On this date as well, the matter did not reach its turn. When Bhushan mentioned it, date of November 11 was given. The counsel highlighted to the court that the matter was being listed from time to time, but not heard. He requested the Court to give 3-4 hours on a day, of which petitioners needed 2 hours to complete submissions. Justice Kant asked him to mention the matter on the morning of November 11, so that non-urgent matters could be adjourned.

Thereafter, on November 11, December 11 and March 10, the matter was again not taken up for hearing. On March 20, 2026 Justice Kant, having assumed charge as CJI, recused from the matter, citing a conflict of interest (as the 2023 law removed the CJI from the Selection Panel). He said that the matter would not be heard by the CJI or any CJI in line. The matter was then listed before Justice Dipankar Datta's bench on April 7.

From January 7, 2025 to March 20, 2026 therefore, the matter remained before a bench headed by Justice Surya Kant, without any effective hearing. It came up for hearing on atleast 10 dates, but was adjourned/not taken up for one reason or the other.

Justice Dipankar Datta's take on the matter

On April 7, a bench of Justice Dipankar Datta and Justice Vipul M Pancholi ordered listing of the matter on May 6, to be taken up immediately after fresh matters.

On May 6, the Union again sought adjournment, with SG Tushar Mehta claiming that he was occupied in the 9-judge Sabarimala reference hearing. Justice Datta however refused to allow an adjournment, noting that this matter was more important than any matter. Despite SG's repeated pleas, the bench, also comprising Justice SC Sharma, did not relent and said that the SG's associates could take notes for that day while the petitioners began submissions.

The matters were then taken up and heard on 4 dates (May 6, May 7, May 14 and July 30). Despite the intervening partial court working days, the hearing was completed in 4 dates and orders reserved on the issue of larger bench reference on July 30. On September 23, these orders came to be pronounced in form of a split verdict.

Questions on the refusal to stay and delay in hearing

The refusal of the Supreme Court to stay the contentious law in 2024 resulted in appointment of atleast 3 Election Commissioners (Gyanesh Kumar, Sukhbir Singh Sandhu and Vivek Joshi) under the CEC Act while the matter was sub-judice.

Infact, the procedure of appointment of 2 out of these 3 ECs was flagged by Justices Khanna and Datta, but they let it pass, primarily to avoid “chaos” in the then upcoming Lok Sabha Elections.

With these ECs at its helm, the ECI went on to conduct the unprecedented Special Intensive Revision of electoral rolls across the country, which have raised widespread concerns over disenfranchisement of millions of voters.

Justice Dipankar Datta, who was part of the bench that refused to stay Section 7 of the Act, has now went on record expressing a prima facie opinion that 2 members of the Selection Committee being from the Executive gives veto power to the Executive over the EC appointment process. The judge has also said that the Union Cabinet Minister to be nominated by the Prime Minister cannot be expected to oppose the PM in the selection process. But was this Executive dominance, in terms of the PM and one Union Minister being part of the Selection Committee of ECs, not obvious enough to warrant a stay by the Supreme Court in 2024? 

The question which emerges is whether the Supreme Court treated the CEC Act challenge with the seriousness it deserved, and whether the Court factored in the irreversible ramifications which the delay will cause for the electoral democracy of our country.

Now, with the reference of the matter to a larger bench, who knows how many more years one will have to wait for the final decision.