'Normally We Don't Stay A Legislation' : Supreme Court Posts Pleas To Stay Election Commissioners Act On March 21

The Supreme Court on Friday (March 15) decided to postpone the hearing on pleas to stay the new law that removes the Chief Justice of India from the selection panel appointing election commissioners. Stating that the interlocutory applications are not on record, the court posted the matter to March 21.

A bench of Justices Sanjiv Khanna, Dipankar Datta, and Augustine George Masih heard writ petitions filed by Congress leader Jaya Thakur, the Association for Democratic Reforms, and others, challenging the constitutionality of various provisions of the Chief Election Commissioner and Other Election Commissioners Act, 2023.

Today, Senior Advocate Vikas Singh, appearing for one of the petitioners, pointed to the Anoop Baranwal ruling. He argued, "When a judgment has been passed by this Court, it cannot be overturned."

In response, Justice Khanna reiterated the court's reluctance to suspend the operation of the election commissioners' act. "The matter came up twice. On both the occasions, it was pointed out that normally we do not stay by an interim order a legislation."

However, Singh insisted that there were instances of the court staying the operation of laws and cited a case where an ordinance was stayed. He also pointed out that the meeting for the selection of new election commissioners, following Arun Goel's resignation, has been preponed. Previously, the Association for Democratic Reforms filed another application against the convening of the selection committee.

An application seeking a stay is in the process of being filed, Singh informed the court. Solicitor General Tushar Mehta, appearing for the union government, said that they had received only a copy of the main petition. 

"You file this application. We will examine," Justice Khanna assured, before adjourning the hearing until Thursday, March 21. 

Senior Advocate Kapil Sibal, and advocates Prashant Bhushan and Kaleeswaram Raj appeared for other petitioners.

The Election Commission of India (ECI) is poised to reveal the schedule for the 2024 Lok Sabha elections tomorrow, having completed its comprehensive assessment of poll readiness across all states. The ECI is scheduled to hold a press conference at the Vigyan Bhavan in New Delhi to make this announcement.

The crux of the current batch of petitions revolves around the contention that the 2023 Act overturns the constitution bench decision in Anoop Baranwal (2023). In this case, it was observed that leaving the appointment of election commission members in the hands of the executive would be detrimental to the health of democracy and the conduct of free and fair elections. Accordingly, the court had directed that appointments to the posts of chief election commissioner and election commissioners should be made by the president on the basis of 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.

Background

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.

Case Details