The Supreme Court on Wednesday commenced hearing the petitions challenging the law excluding the Chief Justice of India (CJI) from the selection committee to appoint of Election Commissioners.

During the hearing, a Bench of Justices Dipankar Datta and Satish Chandra Sharma questioned the petitioner, Congress leader Dr Jaya Thakur, on whether the Court can direct parliament to frame a law directing inclusion of the CJI.

"It is a prerogative of the parliament to make the law. Courts cannot direct the parliament to make a law," the Bench remarked.

The Court also said that the top court's judgment in the case of Anoop Baranwal v. Union of India and ors, which allows CJI in the selection panel, was an arrangement made in the absence of a law.

"Court said certain norms should be laid down to be followed till law is laid down. When a law is framed can you say these norms are not being followed?" the Bench asked.

"The norms are derived from a constitutional mandate that it cannot be left to the executive alone. The law made can be tested by this court on the touchstone of Article 14," Senior Advocate Vijay Hansaria said on behalf of the petitioner.

The hearing in the case will continue on Thursday.

The plea before the Court has challenged the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The law allows appointment to the posts of CEC and Election Commissioners by a Selection Committee comprising the Prime Minister (PM), a Union Cabinet Minister and the Leader of Opposition in Lok Sabha.

As per the petitioner, the provisions of the enactment are violative of the principle of free and fair elections since it does not provide an "independent mechanism" for appointment of the members of the ECI.

Pertinently, according to the plea, the law is in violation of Supreme Court’s judgment in the case of Anoop Baranwal v. Union of India and ors as it excludes the CJI from the process of appointment of the members of the Election Commission of India.

By doing so, the judgment of the Supreme Court stands diluted as the Prime Minister and his nominee will always be "the deciding factor" in the appointments, the petitioner stressed.

When the case was taken up for hearing today, Solicitor General Tushar Mehta, appearing for the Central government, requested the Court to keep the case next week since he is occupied with the Sabarimala reference case before a 9-judge Bench of the apex court.

"I would like to be present. I am seeking time till next week," the SG said.

However, Court termed the case as "more important than any other case" and declined to adjourn the matter.

The Bench stated that it had fixed the case for hearing a month back and the last order specifically said that the matter will not be adjourned.

"All matters are important. We read in the newspaper today, Sabarimala case should not at all have been entertained by the court. 9 judges are busy in a matter where an observation is made that the original petition should not have been entertained. This is more important than any other matter," the Court replied.

It said that it would start hearing the petitioners.

Hansaria then began his arguments. He submitted that the Constituent Assembly Debates did not envisage the selection of Election Commissioners to be left to the government.

However, after the 2023 law, the Leader of Opposition is simply given a list of 200 names, he said.

"After this Act was passed, the same day, the LoP is given a list of 200 candidates. The Constituent Assembly Debates show that the selection committee should be independent, impartial and should not be under control of the government of the day," Hansaria argued.

The Court asked whether a 2002 report submitted by a committee headed by former Chief Justice of India MN Venkatachaliah suggested inclusion of the CJI.

"No, but the idea was Prime Minister should not have complete control," Hansaria replied.

"Is it so because CJI is the member, there may be some inconvenience, some problem?" the Bench asked.

"No, the CJI is part of selection committee of CBI Director also. There is no question of inconvenience. We must have faith in the person (CEC). Today, the slogans being shouted in public meetings about CEC and ECs. I have never seen this," Hansaria said.

He then referred to the Anoop Baranwal judgment.

"Once it said that the 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 judgment on its bare reading shows that it was only to deal with a particular situation of a vacuum," the Court asked.

"Because there was no law then. It cannot be with the hands of the executive exclusively. I am not saying my lordships may issue a mandamus," Hansaria replied.

"How was this judgment considered by parliament?" the Bench asked.

"Parliament cannot give that power exclusively to the executive. It does not meet the ratio of this (Anoop Baranwal) judgment. This law which has been made has given the power completely to the executive," the Bench further queried.

"Come back to the prayers - it has asked the parliament to make a law. Can the court ask the parliament to make a law? Could this be maintainable?" the Court asked.

"The ratio of the judgment cannot be undone by parliament," Hansaria answered.

Senior Advocate Gopal Sankaranarayanan, also appearing for one of the petitioners, said that the issue is whether parliament can make a law giving government the exclusive say in appointing Election Commissioners.

"The question is what kind of law can they make? Can they make any law that allows the executive to have to continue having exclusivity in making appointments? The answer resolutely by the Constitution Bench is no. It is for the constitutional scheme and to sustain Article 21," he said.

Sankaranarayanan stated that such a law can be passed only after amending the Constitution.

"The only way that this law can be done around is by amending the Constitution. If they have not amended the Constitution and the Constitution Bench has given a unanimous judgement saying executive cannot have exclusivity in selection, without an amendment, this law cannot stand. It was the intention since 1950 that the executive will have no exclusivity. But there was no law for seven decades and that is why they say the stop gap arrangement has become permanent. No political party wants to upset this because they have the reigns in their hands, they want to control it," he argued.

There are multiple examples that when there is judgment of this court looking at constitutional interpretation, you have to bring in a constitutional amendment, he added.

The hearing will continue tomorrow.

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