Chief Justice of India Sanjiv Khanna on Tuesday recused himself from hearing a batch of PILs challenging the constitutional validity of a central Act of 2023 that excluded the CJI from the Prime Minister-headed panel to appoint election commissioners.

As soon as the matter came up for hearing, CJI Khanna, heading a bench that also had Justice Sanjay Kumar, said he would not hear it and the case should be placed before another bench. The move appeared to be aimed at avoiding a conflict of interest.

The bench, however, issued a formal directive to the Centre and the Election Commission to file their responses on the issue and posted the matter for further hearing by another bench in the third week of January.

Though advocate Prashant Bhushan, senior advocate Gopal Sankaranarayan and others argued that Justice Khanna had earlier passed interim orders on the matter, the new CJI orally observed: “This time, the situation is slightly different.” Justice Khanna was appointed CJI on November 11.

The batch of PILs filed by Madhya Pradesh Congress leader Jaya Thakur, the NGO Association for Democratic Rights (ADR) and others have challenged the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act.

The challenge was made on the ground that it was contrary to a judgment delivered by a five-judge constitution bench in the Anoop Baranwal case in which the apex court had mandated that the panel for the appointment of the chief election commissioner and the election commissioners must comprise the Prime Minister, CJI and the leader of the Opposition.

In December 2023, the Narendra Modi government passed the Act that vests the appointment process essentially with the government, thus eroding the independence of the judiciary and contradicting the Supreme Court ruling.

The Lok Sabha passed the Act against the backdrop of an unprecedented mass suspension of Opposition MPs. The Act was a breach of a five-judge Supreme Court bench ruling in March last year that the selection committee shall include the CJI. The Act replaces the CJI with “a Union cabinet minister to be nominated by the Prime Minister”.