Supreme Court Refuses To Stay Election Commissioners' Act Dropping CJI From Selection Panel

A bench comprising Justices Sanjiv Khanna and Dipankar Datta heard writ petitions challenging the constitutionality of various provisions of the Act.

The petitions, filed by Congress leader Jaya Thakur, the Association for Democratic Reforms, and others, questioned the legitimacy of the Act's amendments, particularly the exclusion of the Chief Justice of India from the selection panel. 

During today's hearing, Senior Advocate Vikas Singh, representing one of the petitioners, highlighted the precedent set by the Anoop Baranwal ruling. In this case, it was directed that appointments to the posts of chief election commissioner and election commissioners should be made by the president based on the advice tendered by a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. The 2023 Act, however, replaces the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister.

The petitioners argue that this change makes the selection process vulnerable to executive influence. Expressing this concern, Singh asked the court today, “What was the point of this constitution bench judgment then?”

Advocate Prashant Bhushan, representing the Association for Democratic Reforms, referred to the sequence of events leading up to the selection committee's meeting and the filing of applications seeking a stay on the Act. In particular, he highlighted the shortlisting of candidates and the alleged hurried process leading to the second meeting of the search committee. He raised concerns about the timing of the committee's meeting, stating that it seemed designed to make the petitioners' application infructuous.

Justice Khanna questioned Bhushan on the grounds for challenging the Act, emphasising the balance of convenience and the absence of allegations against the appointed election commissioners.

“Now they have been appointed, elections are on corner...it is a question of balance of convenience. There are no allegations against persons appointed,” the judge pointed out.

Bhushan, referring to the Anoop Baranwal judgment, stressed the need for an independent election commission and argued that the act's provisions jeopardise this independence.

Senior Advocate Gopal Sankaranarayanan and other lawyers echoed these submissions, raising the apprehension that the legislation under challenge would facilitate undue executive influence in the process of appointing election commissioners and chief election commissioners, and ultimately, the electoral process. 

Senior Advocate Sanjay Parikh made an impassioned plea and mentioned his matter on the issue, stating "According to me, in all seriousness, this act will put an end to democratic process."

However, this was met with resistance from the bench, which cautioned the senior counsel to not pass such statements. 

Ultimately, the bench expressed reluctance to issue an immediate stay on the legislation but issued notice on the plea made by Parikh, calling for a response from the other side.

It also assured the petitioners that their arguments would be examined but refrained from suspending the legislation at this stage.

Solicitor General Tushar Mehta submitted that the process had started in February, immediately after the Act came into force. 

The Bench remarked that there were two aspects in the present case- one being whether the act itself was constitutional and the other being the procedure adopted.

On procedure, the Bench reasoned that there could have been an opportunity given for the names to be examined.

"This could have easily been avoided by giving 2-3 days. You should have gone more slowly" the Bench remarked.

SG Mehta argued that all 200 names had gone before the members of the committee. It was stated that the process was not accelerated, since it started in February, and there were only 2 persons. It was argued that the formulation of the committee was not the only way of ensuring independence.

Bench remarked that the search committee could have been activated earlier, and pointed to disparity in procedure adopted for filling the two vacancies. It stated:

For 1 vacancy, there are 5 names. For 2, you send only 6. Why not 10? This is what appears from the record. They can consider 200 names, but what is the time given? maybe 2 hours? 200 names to be considered in 2 hours? You could have been transparent.

We are on procedure. Justice must not only be done, it must be seen to be done. We are dealing with the Representation of People Act which according to me is the highest after the Constitution, Justice Dipankar Datta emphatically observed.

Bench further told the SG that the matter was sub-judice before the Court and once it was mentioned before the Apex Court the process could have been deferred by a day or two. 

However, it dismissed the stay and intervention applications and said it would give reasons for the same. 

The Election Commissioners' Act, which received approval from the Lok Sabha on December 21 and the Rajya Sabha on December 12, replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, introducing key changes to the appointment, salary, and removal procedures for top election officials.

The most notable feature of the new legislation is that the President of India would appoint the election commissioners on the strength of a selection committee's recommendation, prepared after considering a list of candidates proposed by a search committee headed by the union law minister. According to Section 7, the selection committee would consist of the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition or the leader of the largest opposition party in the Lok Sabha. Section 8 empowers the panel to regulate its own procedure in a transparent manner, and even consider persons other than those suggested by the search committee.

The enactment of the Election Commissioners' Act triggered a cascade of litigation, with Congress leader Jaya Thakur, the Association for Democratic Reforms, and others approaching the apex court. 

In the meantime, President Droupadi Murmu recently notified the appointments of former IAS Officers Gyanesh Kumar and Sukhbir Singh Sandhu as members of the Election Commission. They were nominated by a committee comprising Prime Minister Narendra Modi, Home Minister Amit Shah and Leader of the Opposition Adhir Ranjan Chowdhury.

In related news, the Centre filed an affidavit opposing the batch of pleas, where it has denied the petitioners' allegation that two election commissioners were hastily appointed on March 14 to pre-empt any orders passed by the Court on the next day, when the matters were listed for hearing on interim relief.

Case Title: Dr Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024 and connected matters

Citation : 2024 LiveLaw (SC) 254

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