Supreme Court's Refusal to Stay Legislation On Election Commissioner Appointments: Analyzing Implications For Democracy

With less than a month left for the 2024 General Elections, the Supreme Court on Friday (March 22) refused to stay on the legislation concerning the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) which had dropped the Chief Justice of India (CJI) from the selection panel, vesting ultimate power and authority in the panel comprising Prime Minister, Union Minister and Leader of Opposition of Lok Sabha to appoint CEC and ECs.

The refusal to stay the legislation came in response to the pleas preferred before the Supreme Court challenging the constitutional vires of Section 7(1) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, claiming that the provision does away with the effect of the Anoop Baranwal Judgment, where the Supreme Court directed that till the vacuum of absence of law regarding the appointment of CEC and ECs is filled, the appointment of the CEC and ECs would take place by a selection panel comprising Prime Minister, Chief Justice of India and Leader of Opposition in Lok Sabha.

“..we do not deem it appropriate at this stage, keeping in view the timelines for the upcoming 18th General Elections for the Lok Sabha, to pass any interim order or direction. As indicated above, this would lead to chaos and virtual constitutional breakdown. Remand at this stage would not resolve the matter.”, a Bench Comprising Justices Sanjiv Khanna and Dipankar Datta said while refusing to grant a stay of the operation of the law.

The Supreme Court said that an interim order to stay the operation of the law would not be appropriate at this stage because there existed no exceptional circumstances to put the law on hold due to the upcoming Lok Sabha Polls. However, it is important to mention that the petitions challenging the law were filed way back in January 2024 and the petitioners had pressed for a stay, but the court adjourned the matter to April 2024. Therefore, the last-minute urgency to post the matter just before the commencement of the general election was created by the court itself.

At this juncture, a pertinent question arises i.e.,Would permitting general elections in the country, orchestrated by Election Commissioners appointed by a Union Government majority vote of 2:1, not constitute an exceptional circumstance for the Supreme Court to stay the law, considering it undermines a fundamental feature of democracy—free and fair elections?

The law is well-settled that while claiming the relief of interlocutory/interim nature, the party seeking relief must essentially prove two things i.e., firstly, the balance of convenience lies in its favor, and secondly, the irreparable injury/harm would be suffered if interim relief is not provided.

Contrary to the inference drawn by the Apex Court, a question arises: Would allowing general elections under the supervision of executive-appointed Election Commissioners not result in irreparable injury to the democratic values of free and fair elections, which the Supreme Court has consistently held to be part of the basic structure doctrine of the constitution?

It is pertinent to mention that the foundation of constitutional democracy thrives on free and fair elections conducted by an independent institution, rather than one comprised of individuals appointed by the executive.

At this stage, it is relevant to highlight the views expressed by Justice Ajay Rastogi in his concurring judgment passed in Anoop Baranwal noting the importance of the independent election commissioner i.e., free from political/executive interference. 

“The decisions taken by the Election Commission need to generate the trust of the people so that the sanctity of the democratic process is maintained. If the Election Commission starts showing any arbitrary decision-making, then the resulting situation would not just create doubt on the members of the Election Commission of being biased but would create fear in the minds of the common citizens that the democratic process is being compromised. Therefore, the Election Commission needs to be independent and fully insulated from any external or internal disrupting environment.”, observed Rastogi J.

Further, in the T.N. Sheshan case, the Supreme Court provided a thoughtful interpretation of the constitutional scheme regarding the appointment of the election commission by advocating the non-interference of the political executive in the matter of election commissioner appointment.

"In order to ensure the purity of the election process it was thought by our Constitutionmakers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day.", the court observed in T.N. Sheshan case.

It is undeniable that under the new law, the selection of Election Commissioners is determined by a majority vote of 2:1, giving the Union Government a dominant role in their appointment. This raises doubts about the impartiality of the Election Commission, which is constitutionally mandated to ensure free and fair elections in the country, casting doubt on its functioning under the new law.

The eminent necessity arises because the Supreme Court in Anoop Baranwal highlighted the Election Commission's role as integral to conducting free and fair elections towards the working of democracy.

"It is the duty and constitutional obligation of this Court to protect and nurture the independence of the Election Commission.", the court said in Anoop Baranwal. But, when the necessity arises, the court itself refrains to protect the independence of the Election Commission.

The Union argues that the new law neither violates the constitution nor undermines the precedent set by the Anoop Baranwal case. However, it is worth noting that while Anoop Baranwal upheld the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) through a law passed by Parliament, it did not endorse their selection by a panel dominated by political or executive influences. In Anoop Baranwal, the court emphasized the need for the Election Commission to be independent, transparent, and accountable to strengthen the democratic process.

If the court had intended to involve political or executive elements in the selection process of the CEC and ECs, why would it have directed their selection by a three-member panel consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha, and the Chief Justice of India?

It was contended by the Petitioners that the names of the names and details were statedly furnished to the Leader of Opposition Mr. Adhir Ranjan Chowdhary minutes before the meeting for the selection of the ECs that was held on 14.03.2024 denying him the opportunity to choose the names with full details and particulars of the candidates.

The Supreme Court expressed concerns over the procedure adopted for the selection of the two ECs and emphasized that, because "their views are equally important," each member of the selection committee should have the opportunity to review such selections. The court questioned the Union Government as to "how the list of 200 candidates was shortlisted to 6 in a matter of few hours", stressing that the government should have undertaken the exercise more slowly, and activated the search committee earlier.

In para 14 of the order, the court noted that the "Procedural sanctity of the selection process requires fair deliberation with examination of background and merits of the candidate", but still did not deem it appropriate to pass any interim order keeping in view the timelines for the upcoming 18th General Elections for the Lok Sabha.

"As indicated above, this would lead to chaos and virtual constitutional breakdown. Remand at this stage would not resolve the matter", the court said.

Last but not least, I want to quote a few lines from the majority Judgment authored by Justice KM Joseph in the Anoop Baranwal case.

"The assumption of power itself through the electoral process in the democracy cannot and should not be perceived as an end. The end at any rate cannot justify the means. The means to gain power in a democracy must remain wholly pure and abide by the Constitution and the laws. An unrelenting abuse of the electoral process over a period of time is the surest way to the grave of the democracy. Democracy can succeed only in so far as all stakeholders uncompromisingly work at it and the most important aspect of democracy is the very process, the electoral process, the purity of which alone will truly reflect the will of the people so that the fruits of democracy are truly reaped. The essential hallmark of a genuine democracy is the transformation of the 'Ruled' into a citizenry clothed with rights which in the case of the Indian Constitution also consist of Fundamental Rights, which are also being freely exercised and the concomitant and radical change of the ruler from an 'Emperor' to a public servant. With the accumulation of wealth and emergence of near monopolies or duopolies and the rise of certain sections in the Media, the propensity for the electoral process to be afflicted with the vice of wholly unfair means being overlooked by those who are the guardians of the rights of the citizenry as declared by this Court would spell disastrous consequences."