Would Disrupt Lok Sabha Elections : Supreme Court On Refusal To Stay Election Commissioners' Act

The Supreme Court today released its order in the batch of pleas seeking stay of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which removes the Chief Justice of India from the selection panel appointing election commissioners.

Yesterday, the bench comprising Justices Sanjiv Khanna and Dipankar Datta had refused to stay the law and to direct fresh selection of Election Commissioners by a panel consisting of the CJI, albeit expressing that the Union government acted in haste. It had said at the time that reasons for the decision would follow.

Today evening, a detailed order was released, which reasoned that stay of the new law may lead to confusion, if not chaos, and disrupt the upcoming Lok Sabha Elections.

"Moreover, any interjection or stay by this Court will be highly inappropriate and improper as it would disturb the 18th General Election for the Lok Sabha which has been scheduled and is now fixed to take place from 19.04.2024 till 01.06.2024...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", the order read.

At the outset, the Bench observed that the Constitution Bench judgment in Anoop Baranwal v. Union of India put in place the Selection Committee as a pro-tem measure till a law regarding the appointment of Election Commissioners was enacted by the Parliament in terms of Article 324 of the Constitution.

"This is clear from the judgment, which states that the direction shall hold good till a law is made by the Parliament. It is also observed that the Court is neither invited, nor if invited, would issue a mandamus to the legislature to make a law. We would also add that the Court would not 'invite' the legislature to make a law in a particular manner."

The Bench further observed that interlocutory remedy was meant for exceptional circumstances which tilt the scales and balance of convenience on account of any resultant injury. It was added that when constitutional validity of legislations is involved, judicial restraint must be shown in passing 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."

Be that as it may, it voiced concerns over the procedure adopted by the Centre in appointing two new ECs, insofar as the petitioners claimed that the names and details of the candidates were furnished to Selection Committee minutes before the meeting on 14.03.2024. "Section 6 of the 2023 Act 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.

"Such selections should be made with full details and particulars of the candidates being circulated to all members of the Selection Committee....Procedural sanctity of the selection process requires fair deliberation with examination of background and merits of the candidate," the bench observed in the order.

However, it noted that the merits of the officers appointed have not been questioned by the petitioners.

Notably, the order recorded that presence of the two new ECs appointed by the President would bring about a balance and check in the working of the Election Commission.

Briefly put, the pleas were moved by Congress leader Jaya Thakur, the Association for Democratic Reforms, and others, alleging that the new law amounted to executive overreach and encroachment on the election commission's autonomy. They also argued that it diminished the election commission's institutional legitimacy, and was contrary to the constitution bench's judgment in Anoop Baranwal v. Union of India.

They highlighted urgency with regard to appointment of Elections Commissioners, as President Droupadi Murmu recently notified the appointments of former IAS Officers Gyanesh Kumar and Sukhbir Singh Sandhu as members of the Election Commission, based on nomination by a committee comprising Prime Minister Narendra Modi, Home Minister Amit Shah and Leader of the Opposition Adhir Ranjan Chowdhury.

The Centre, on the other hand, had filed an affidavit opposing the batch of pleas, where it denied the petitioners' allegation that the 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 Details: Dr Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024 and connected matters

Citation : 2024 LiveLaw (SC) 254

Click here to read the order