New Delhi : The Supreme Court on Wednesday asked whether it can direct Parliament to make a law for regulating appointment procedures of the chief election commissioner and the deputies.

The remarks were made by a bench of justices Dipankar Datta and Satish Chandra Sharma during the final hearing on a clutch of petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which excludes the Chief Justice of India (CJI) from the selection panel for appointing Election Commissioners.

The top court, at the outset, refused to accede to the Centre’s request to adjourn the hearing on the pleas, saying the instant matter is “more important” than the Sabarimala case.

During the hearing, Justice Datta referred to a prayer made in one of the petitions asking the top court to direct Parliament to enact a law to regulate the appointment of the CEC and the Election Commissioners.

“Come back to the prayers… it has asked Parliament to make a law. Can the court ask Parliament to make a law? Could this be maintainable,” the judge asked.

He also referred to the March 2, 2023 judgement in the Anoop Baranwal case of a five-judge constitution bench which had unanimously held that the selection of the CEC and the ECs would be done by a three-member committee consisting of the prime minister, the leader of the opposition (or the leader of the largest opposition party in Parliament), and the CJI.

The verdict had altered the then prevailing mode of selection where the CEC and ECs were appointed by the President acting on the advice of the Prime Minister.

Justice Datta said the judgement had made clear that this will remain in operation till Parliament makes the law.

“Why did the court then restrict the Anoop Barnwal judgement only till a particular period till the law is made? It was only to deal with a particular situation of a vacuum,” he said.

Moreover, the Supreme Court cannot direct Parliament to make a law, the judge said, adding, “Aren’t these observations over 300 pages a justification for what the court laid down for a short period till the law is made? Can you say that the law also has to follow those observations.”

“Once it said that the CEC and ECs do not have to be chosen exclusively by the executive, why did it stop there? The court was laying down norms, then why does court restrict it only till a particular period till a law is made? This judgement on its bare reading shows that it was only to deal with a particular situation of a vacuum,” the judge went on.

Senior advocate Vijay Hansaria, representing one of the petitioners, opened the arguments by challenging the 2023 law and argued that Section 7 of the Act grants the ruling executive “primacy” in appointments, which he termed an “anathema” to the independence of the Election Commission. Under the new law, the selection committee consists of the prime minister, a Union Cabinet minister, and the leader of the opposition.

Hansaria said that this 2-1 ratio effectively gives the government a “pocket board” allowing them to appoint “the prime minister’s man”.

He referred to the conflict of interest of the ruling party and said it has a direct interest in election outcomes and therefore, the selection process must be outside exclusive executive control.

He also referred to the constituent assembly debates and said that there was consensus that elections must be managed by an independent body “taken out of the hands of the government of the day”.

He said Parliament does not lack power to make a law but it has to be in consonance with directions of the judgement and ensure that the executive of the day does not have the sole control over the appointment process.

He was responding to the observations of Justice Datta that the Anoop Baranwal judgment was merely a “stop-gap” arrangement.

Hansaria pointed to “slogans being shouted in public meetings” against the CEC and ECs, arguing that such lack of public faith stems from the perceived lack of independence in the appointment process.

Solicitor General Tushar Mehta countered this, asking “If there are abusive words against judges, should we remove the Collegium system? What kind of argument is this?”

Senior advocate Gopal Sankarnarayanan, also appearing for the petitioners, argued that since the Baranwal judgment was a unanimous decision by a Constitution Bench, its principles regarding executive control could only be bypassed through a Constitutional Amendment, not a regular statute.

The hearing will resume on Thursday.

Under the 2023 Act, the selection committee consists of the prime minister, a Union minister nominated by the prime minister and the leader of Opposition (or leader of the largest opposition party in the Lok Sabha).

The PILs said the exclusion of the CJI from the panel undermines the independence of the appointment process.

The law has been challenged by multiple petitioners, including Congress leader Jaya Thakur and the Association for Democratic Reforms.