The Supreme Court on Friday issued a notice to the Centre on a petition challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, as unconstitutional but refused to stay the impugned legislation.

“There will not be any stay, we will issue a notice although,” the bench of Justice Sanjiv Khanna and Justice Dipankar Datta told senior advocate Vikas Singh, appearing for the petitioner.

Justice Khanna, heading the bench, said no stay can be granted without hearing the other side — the government. “Please, we can’t stay a statute like this,” the bench said.

Singh had argued that the legislation violated a five-judge constitution bench ruling that the selection committee must include the Chief Justice of India, and that it violated the principle of the separation of powers.

The bench posted the matter for further hearing to April.

The petition was filed by Madhya Pradesh Congress general secretary Jaya Thakur, pleading that the bill passed by Parliament and cleared by the President violated Articles 14 (equality), 21 (life and personal liberty), 50 (separation of powers between the executive and the judiciary) and 324 (powers of the Election Commission). It is also against the ruling of the constitution bench that said: “We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India.”

"This norm will continue to hold good till a law is made by the Parliament," the constitution bench had said.

According to the petition, the impugned legislation has by excluding the Chief Justice of India from the selection panel nullified the judgment passed by the apex court.

Instead of the CJI, the new legislation seeks to have a cabinet minister along with the Prime Minister and the leader of the Opposition or leader of the single largest party, as is appropriate.

The Congress leader has argued all other statutory institutions such as the CBI, CVC, NHRC, SHRC and Lok Pal have an independent mechanism for the appointment of their heads and members.

“The same is carried out with an object to keep them insulated from any external influence that allows them to remain neutral to carry on the assigned functions,” the petition said.

It added that the present bill passed by Parliament on the appointment of CEC and ECs “clearly shows that they are compromising the free and fair election” by excluding the CJI from the committee and giving the veto power to the PM and his nominee in the appointment of the CEC and the ECs.