The Supreme Court on Wednesday listed for February 4 a batch of PILs challenging the constitutional validity of a law that excludes the Chief Justice of India from the panel that selects election commissioners.

Civil liberties organisation Association for Democratic Rights (ADR) has sought early adjudication of the issue since a new chief election commissioner (CEC) may be appointed after February 18 once Rajiv Kumar retires.

A bench of Justice Surya Kant, Justice Dipankar Datta and Justice Ujjal Bhuyan said the matter would be taken up on February 4, after advocate Prashant Bhushan, appearing for ADR, told the court that the issue needed to be heard urgently as the CEC was due to retire.

The bench orally said it would determine the crucial question relating to the power of the Supreme Court to pass directions in the absence of a law vis-à-vis the authority of Parliament to enact a statute.

“The real test here is between this court’s opinion and exercise of legislative powers,” Justice Kant, heading the bench, observed.

Bhushan argued that the Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, had been passed in violation of the Supreme Court’s judgment in the Anoop Baranwal vs Union of India case. As a result, he said the executive continues to control the Election Commission, which is a threat to electoral democracy.

He was supported by senior advocate Gopal Sankaranarayanan, who submitted that the new law could not have been enacted without amending the Constitution as held by the apex court. Justice Kant said the court understood that the issue was serious and needed sufficient time for proper adjudication.