Constitutionality of Chief Election Commissioner and other Election Commissioners Act, 2023 remains sub judice

In Dr. Jaya Thakur v. Union of India, Justices Sanjiv Khanna and Dipankar Datta heard the applications for stay of selection and appointment of the Election Commissioners, 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. The 10 page long judgement concluded: "we are not inclined to accept the prayer for grant of stay. Accordingly, the applications seeking stay are dismissed. We would clarify that the observations in this order are tentative and are not to be treated as final and binding, as the matter is sub-judice."

The primary grounds of challenge was twofold:

1) Section 7(1) of the 2023 Act dilutes, if not amends or modifies, the judgment of Court’s Constitution Bench in Anoop Baranwal v. Union of India, by substituting the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee for the post of the Chief Election Commissioner and the Election Commissioners. 

2) The provision has a direct and potential impact on the conduct of transparent, free and fair elections, one of the foundational requirements of democracy.

The selection process of the Election Commissioners was 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 People was not furnished necessary details of the six shortlisted candidates in advance to effectively participate in the selection process. The names and details were statedly furnished minutes before the meeting for the selection of the Election Commissioners was held on March 14, 2024. Therefore, he was denied the opportunity to choose and have his voice heard. 

The writ petition challenged the vires of the 2023 Act, which was sub-judice before the Court since January 2, 2024, and therefore soon after the resignation of one of the Election Commissioners, applications for stay were filed, mentioned and directed to be listed for hearing before the Court on March 15, 2024. However, the selection and appointment of two Election Commissioners was made on March 1, 2024.

The applicant-petitioners had urged the court to direct fresh selection with the Chief Justice of India as a member of the Selection Committee through an interim order. The Court observed, "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. 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. 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. In our opinion, grant of stay would lead to uncertainty and confusion, if not chaos. That apart, even when the matter had come up earlier and the applications for stay were pressed, we had refused to grant stay."

The Court relied on the decision in T.N. Seshan v. Union of India and on the insightful observations of Dr. B. R. Ambedkar. The Court dismissed the applications seeking stay in I.A. No. 66382/2024 in W.P. (C) 11/2024, I.A. No. 4223/2024 in W.P. (C) 13/2024, I.A. No. 62608/2024 in W.P.(C) No. 14/2024, I.A. No. 68091/2024 in W.P. (C) 87/2024, I.A. No. 30286/2024 in W.P. (C) 87/2024, I.A. No. 63879 of 2024 in W.P. (C) No. 87 of 2024 and I.A. No. 69713/2024 in W.P. (C) 191/2024 are dismissed. It also dismissed applications seeking intervention in I.A. No. 64017/2024 in W.P.(C) 14/2024 and I.A. No. 66282/2024 in W.P. (C) 87/2024 are dismissed. It granted permission to the intervenor in I.A. No. 71728/2024 in W.P. (C) 14/2024 prays to withdraw the intervention application.

The Court's order reads: "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. 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."

The Court noted that "the petitioners have not commented or questioned the merits of the persons selected/appointed as ECs."  

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