SC Expresses Concern Over Procedure Adopted For Selection Of Two Election Commissioners

The Supreme Court while dismissing applications for stay on the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 that excluded the Chief Justice of India (CJI) from appointment of Election Commissioners expressed its concern on the procedure adopted for selection of the incumbents to the two vacant posts of Election Commissioners. 

The Court was deciding a batch of pleas for stay of selection and appointment of the Election Commissioners (ECs), in the writ petitions filed, inter alia, challenging the vires of Section 7(1) of the aforesaid 2023 Act.

The two-Judge Bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta said, "We must, however express our concern on the procedure adopted for selection of the incumbents to the two vacant posts of ECs, a significant constitutional post. Such selections should be made with full details and particulars of the candidates being circulated to all members of the Selection Committee. 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. Procedural sanctity of the selection process requires fair deliberation with examination of background and merits of the candidate. The sanctity of the process should not be affected."

The Bench also held, “… 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. Balance of convenience, apart from prima facie case and irreparable injury, is one of the considerations which the court must keep in mind while considering any application for grant of stay or injunction. Interlocutory remedy is normally intended to preserve status quo unless there are exceptional circumstances which tilt the scales and balance of convenience on account of any resultant injury.”

The Court added that grant of stay would lead to uncertainty and confusion, if not chaos and that apart, even when the matter had come up earlier and the applications for stay were pressed, it would have refused to grant stay.

Senior Advocate Sanjay Parikh and Advocate Prashant Bhushan appeared for the petitioners while Solicitor General Tushar Mehta appeared for the respondents.

In this case, the primary grounds of challenge were twofold. First, Section 7(1) of the 2023 Act dilutes, if not amends or modifies, the judgment of the Supreme Court’s Constitution Bench in Anoop Baranwal v. Union of India (2023) 6 SCC 161, by substituting 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. Secondly, the provision has a direct and potential impact on the conduct of transparent, free, and fair elections, one of the foundational requirements of democracy. That apart, the selection process of the ECs was challenged on the ground of procedural irregularity, affecting the fairness, transparency, and objectivity in the selection process in question.

It was also contended that the Leader of 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 Supreme Court in the above regard said, “It is well-settled position of law 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.17 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 said principle keeps in mind the presumption regarding constitutionality of legislation as well as the fact that the constitutional challenge when made may or may not result in success.”

The Court noted that the courts do not, unless eminently necessary to deal with the crises situation and quell disquiet, keep the statutory provision in abeyance or direct that the same be not made operational, however, it would not be appropriate to pen down all situations as sometimes even gross or egregious violation of individual Fundamental Rights may on balance of convenience warrant an interim order. It added by saying that the Courts strike a delicate balance 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 applicant-petitioners urge that this court may by an interim order direct fresh selection with the CJI as a member of the Selection Committee. This would be plainly impermissible, without declaring Section 7(1) as unconstitutional. Further, we would be enacting or writing a new law replacing or modifying Section 7(1) of the Act, as enacted by the Parliament, if such a contention were accepted”, it further said.

The Court observed that given the importance and humongous task undertaken by the Election Commission of India, presence of two more ECs brings about a balance and check and that the concept of plurality in Article 324 of the Constitution is necessary and desirable.

“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 sanctity of the process should not be affected. Nevertheless, in spite of the said shortcoming, 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”, it also remarked.

The Court added that this would lead to chaos and virtual constitutional breakdown and hence, remand at this stage would not resolve the matter. It took note of the fact that the petitioners not commented or questioned the merits of the persons selected/appointed as ECs.

“Further, EC being a constitutional post, it is wise to remind ourselves that once a constitutional post holder is selected, they are duty bound to act in accordance with the letter and spirit of the Constitution. The assumption is that they shall adhere to constitutional role and propriety in their functioning”, it concluded.

Accordingly, the Apex Court dismissed the applications.

Cause Title- Dr. Jaya Thakur & Ors. v. Union of India & Anr. (Neutral Citation: 2024 INSC 246)

Appearance:

Petitioners: Senior Advocate Sanjay Parikh, AOR Prashant Bhushan, Advocates Suroor Mander, Cheryl D’souza, Rahul Gupta, Ananya Kumar, Varun Thakur, Deepak Goel, Tanuj Bagga Sharma, M.K. Ravi, Denson Joseph, AOR M/s. Varun Thakur & Associates, Advocates Pradeep Kumar Yadav, Vishal Thakre, Gopal Singh, Aryan P Nanda, Aditya Yadav, AORs Sanjeev Malhotra, Aparna Bhat, and Advocate Karishma Maria.

Respondents: Solicitor General Tushar Mehta, AORs Arvind Kumar Sharma, Ankit Agarwal, Advocates Atul Raj, Ashish Shukla, AOR Mohammed Sadique T.A., Advocates Kaleeswaram Raj, Thulasi K. Raj, Aparna Menon, Chinnu Maria Antony, AORs R.P. Gupta, and Prashant Padmanabhan.

Click here to read/download the Judgment