The Supreme Court on Tuesday refused to stay the operation of the new law that provides for appointment of the Chief Election Commissioner and Election Commissioners by a panel which does not include the Chief Justice of India.

A bench of Justices Sanjiv Khanna and Dipankar Datta issued notice to the Centre on a plea filed by an NGO, Association for Democratic Reforms, and listed the matter along with other pending petitions on the issue for hearing in April.

The plea challenged the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

Advocate Prashant Bhushan, appearing for the NGO, submitted the law is contrary to the constitution bench judgement of the apex court which had directed that the CJI be there on the panel that would appoint the CEC and ECs.

He said two election commissioners are about to superannuate, and if the operation of the law is not stayed, the plea will become infructuous.

"Sorry, we cannot grant you interim relief in the matter. The matter of constitutional validity never becomes infructuous. We know our parameters for granting interim relief," the bench told Bhushan, when he insisted on an interim stay.

The new law states: "Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of — (a) the Prime Minister — Chairperson; (b) the Leader of Opposition in the House of the People — Member; (c) a Union Cabinet Minister to be nominated by the Prime Minister — Member." The plea said the law was enacted in 2023 in order to fill the vacuum under Article 324(2) of the Constitution of India.

"However, the impugned section restores the earlier position of law i.e. appointment of Chief Election Commissioner and Election Commissioner would be done solely by the executive. The selection committee is dominated by the members from executive i.e. Prime Minister and Union Cabinet Minister to be nominated by the Prime Minister," it said.

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