Supreme Court: In a batch of writ petitions under Article 32 of the Constitution challenging the validity of the Section 7(1) of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, (‘the Election Commissioners Act ’) and seeking stay on selection of two newly appointed Election Commissioners, the Division Bench of Sanjiv Khanna and Dipankar Datta, JJ. refused to stay the Act, which removed the Chief Justice of India from the Selection Committee appointing Election Commissioners.
Section 7(1) ‘the Election Commissioners Act was challenged on two-fold ground:
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Section 7(1) dilutes, if not amends or modifies, the Constitution Bench decision in Anoop Baranwal v. Union of India [Election Commission Appointments], (2023) 6 SCC 161, by substituting the Chief Justice of India (‘CJI’) with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee for the post of the Chief Election Commissioner (‘CEC’) and the ECs.
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Section 7(1) directly impacts the conduct of transparent, free and fair elections, one of the foundational requirements of democracy.
The selection process of the two ECs namely, Gyanesh Kumar and Dr. Sukhbir Singh Sandhu was challenged on the ground of procedural irregularity, affecting the fairness, transparency and objectivity in the selection process in question. The petitioner’s case was that the Leader of the Opposition in the House of the People, was not furnished necessary details of the six shortlisted candidates in advance to effectively participate in the selection process. The names and details of the candidates were statedly furnished minutes before the meeting for the selection of the ECs, held on 14-03-2024.
The Court said that in Anoop Baranwal (supra) directions were issued as a temporary measure upon noting that there was a legislative vacuum as the Parliament had not made any enactment as contemplated in Article 324(2), which postulates the appointment of the CEC and ECs by the President of India in the absence of any law made by the Parliament.
The Court reiterated that in matters involving constitutionality of legislations, Courts are cautious and show judicial restraint in granting interim orders. Unless the provision is ex facie unconstitutional or manifestly violates fundamental rights, the statutory provision cannot be stultified by granting an interim order. The Court explained that stay is not ipso facto granted for mere examination or even when some cogent contention is raised. Suspension of legislation pending consideration is an exception and not the rule. The Court said that unless eminently necessary to deal with the crises situation and quell disquiet, the Courts do not keep the statutory provision in abeyance or direct that the same be made inoperative. A delicate balance is strike by the Courts to step-in in rare and exceptional cases, being mindful of the immediate need, and the consequences as to not cause confusion and disarray.
The Court rejected the petitioners’ prayer to pass an interim order directing fresh selection of the ECs with the CJI as a member of the Selection Committee. The Court said that this would be plainly impermissible, without declaring Section 7(1) as unconstitutional and that it would mean enacting or writing a new law replacing or modifying Section 7(1) of the Election Commissioners Act, as enacted by the Parliament, if such a contention were accepted. On grant of stay or injunction, the Court also explained that balance of convenience, apart from prima facie case and irreparable injury, is one of the considerations which must be kept in mind. The Court opined that the grant of stay would lead to uncertainty and confusion, if not chaos. Further, the Court said that any stay would be highly inappropriate and improper as it would disturb the 18th General Election for the Lok Sabha scheduled to take place from 19-04-2024 till 01-06-2024 and lead to chaos and virtual constitutional breakdown.
Regarding the procedure for selection of two ECs, the Court said that such selections should be made with full details and particulars of the candidates being circulated to all members of the Selection Committee. On perusal of Section 6 of the Election Commissioners Act, the Court noted that it postulates five prospective candidates which, prima facie, appears to mean that for two vacant posts ten prospective candidates should have been shortlisted. The Court said that procedural sanctity of the selection process requires fair deliberation with examination of background and merits of the candidate and such sanctity should not be affected.
Therefore, the Court dismissed the applications seeking stay and clarified that the observations in the present order were tentative and not to be treated as final and binding, as the matter is sub-judice.
[Dr. Jaya Thakur v. Union of India, 2024 SCC OnLine SC 406, Order dated: 22-03-2024]
Advocates who appeared in this case :
For the Petitioner: AOR Prashant Bhushan, Advocate Suroor Mander, Advocate Cheryl D’souza, Advocate Rahul Gupta, Advocate Ananya Kumar, Advocate Varun Thakur, Advocate Deepak Goel, Advocate Tanuj Bagga Sharma, Advocate Dr. M.K. Ravi, Advocate Denson Joseph, Varun Thakur & Associates, Advocate Pradeep Kumar Yadav, Advocate Vishal Thakre, Advocate Gopal Singh, Advocate Aryan P Nanda, Advocate Aditya Yadav, AOR Sanjeev Malhotra, Senior Advocate Sanjay Parikh, AOR Aparna Bhat, Advocate Karishma Maria
For the Respondents: Solicitor General Tushar Mehta, AOR Arvind Kumar Sharma, AOR Ankit Agarwal, Advocate Atul Raj, Advocate Ashish Shukla, AOR Mohammed Sadique T.A., Advocate Kaleeswaram Raj, Advocate Thulasi K. Raj, Advocate Aparna Menon, Advocate Chinnu Maria Antony, AOR R.P. Gupta, AOR Prashant Padmanabhan
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