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SUPREME COURT OF INDIA
SANJIV KHANNA, DIPANKAR DATTA, JJ.
Dr. Jaya Thakur and Others – Petitioners
Versus
Union of India and Another – Respondents
Writ Petition (Civil) Nos. 11, 13, 14, 87, 191 of 2024
Decided On : 22-03-2024
(A) Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 – Sections 6 and 7(1) – Constitution of India – Article 324 – Stay of selection and appointment of Election Commissioners – Applications for – In matters involving constitutionality of legislations, courts are cautious and show judicial restraint in granting interim orders – Unless provision is ex-facie unconstitutional or manifestly violates fundamental rights, statutory provision cannot be stultified by granting an interim order – 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 – Courts do not, unless eminently necessary to deal with crises situation and quell disquiet, keep statutory provision in abeyance or direct that same be not made operational – Courts strike a delicate balance to step-in in rare and exceptional cases, being mindful of immediate need and consequences as to not cause confusion and disarray – Balance of convenience, apart from prima facie case and irreparable injury, is one of considerations which 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 scales and balance of convenience on account of any resultant injury – Grant of stay would lead to uncertainty and confusion, if not chaos – Concept of plurality in Article 324 of Constitution is necessary and desirable. (Paras 10, 12 and 13)
(B) Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 – Sections 6 and 7(1) – Selection and appointment of Election Commissioners – Such selections should be made with full details and particulars of candidates being circulated to all members of Selection Committee – EC being a constitutional post, once a constitutional post holder is selected, they are duty bound to act in accordance with letter and spirit of Constitution – Assumption is that they shall adhere to constitutional role and propriety in their functioning – Applications seeking stay dismissed. (Paras 14, 15 and 16)
Facts of the case:
This Order records reasons and decides applications for stay of selection and appointment of Election Commissioners in writ petitions filed under Article 32 of Constitution of India inter-alia, challenging vires of Section 7(1) of Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023.
Primary grounds of challenge are twofold. First, Section 7(1) of 2023 Act dilutes, if not amends or modifies, Judgment of this Court’s Constitution Bench in Anoop Baranwal vs. Union of India, (2023) 6 SCC 161 by substituting Chief Justice of India with a Union Cabinet Minister nominated by Prime Minister in the Selection Committee for the post of Chief Election Commissioner and the ECs. Secondly, provision has a direct and potential impact on the conduct of transparent, free and fair elections, one of the foundational requirements of democracy.
Findings of Court:
Court not inclined to accept the prayer for grant of stay. Accordingly, applications seeking stay are dismissed. Observations in this Order are tentative and are not to be treated as final and binding, as the matter is sub-judice.
Result : Applications dismissed.
ORDER :
1. This order records reasons and decides the applications for stay of selection and appointment of the Election Commissioners1 [For short “EC”] in the writ petitions filed under Article 32 of the Constitution of India2 [For short “Constitution”] inter-alia, challenging the vires of Section 7(1) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023.3 [For short “2023 Act”]
2. The primary grounds of challenge are twofold. First, Section 7(1) of the 2023 Act dilutes, if not amends or modifies, the judgment of this Court’s Constitution Bench in Anoop Baranwal vs. Union of India, (2023) 6 SCC 161 by substituting the Chief Justice of India4 [For short “CJI”] with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee for the post of the Chief Election Commissioner5 [For short “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.
3. That apart, the selection process of the ECs, as adopted in the present case, has been challenged on the ground of procedural irregularity, affecting the fairness, transparency and objectivity in the selection process in question. The Leader of Opposition in the House of the People6 [For short “LoP” - As per Explanation to Section 7(1) of the 2023 Act the leader of the single largest party in opposition of the Government in the House of the People shall be deemed to be the LoP, in case where the LoP has not been recognized] was not furnished necessary details of the six shortlisted candidates in advance to effectively participate in the selection process.7 [Reliance is placed on the letter dated 12.03.2024 of Mr. Adhir Ranjan Chowdhury requesting for bio-profiles of the persons short-listed by the Search Committee well before the meeting of the Selection Committee] The names and details were statedly furnished minutes before the meeting for the selection of the ECs was held on 14.03.2024.8 [Reliance is placed on the report dated 14.03.2024 published in the Indian Express quoting Mr. Adhir Ranjan Chowdhury] Thus, he has been denied the opportunity to choose and have his voice heard. Further, the writ petition challenging the vires of the 2023 Act was sub-judice before this Court since 02.01.2024, and therefore soon after the resignation of one of the ECs, applications for stay were filed, mentioned and directed to be listed for hearing before this Court on 15.03.2024. However, the selection and appointment of two ECs was made on 14.03.2024.9 [An earlier vacancy to the post of EC was created by virtue of EC - Mr. Anup Chandra Pandey demitting office on 14.02.2024. The second vacancy to the post of EC occurred by virtue of the resignation of EC - Mr. Arun Goel on 09.03.2024]
4. The Union of India has filed a conjoint reply to the applications for stay inter-alia, stating that:
(b) On 01.02.2024, the Selection Committee, under Section 7(1) of the 2023 Act, was constituted, and consists of the Prime Minister, the Home Minister and the LoP.
(c) On 01.02.2024, the Search Committee, under Section 6 of the 2023 Act, was constituted, and is chaired by Minister of State, Law and Justice, Government of India10 [For short “GoI”] with the Home Secretary, GoI and Secretary, Department of Personnel and Training, GoI as members.
(d) On 04.02.2024, notice was issued for convening meeting of the Selection Committee on 07.02.2024 for filling one vacancy to the post of EC, as an EC had demitted office.11 [See Supra Note 10] However, the meeting was postponed on 07.02.2024.
(e) On 09.03.2024, notice was issued for meeting of the Selection Committee to be held on 15.03.2024.
(f) On 09.03.2024, Mr. Arun Goel, EC, tendered his resignation, which was accepted w.e.f.
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