Source: 
The Leaflet
https://theleaflet.in/why-has-the-sc-refused-to-issue-an-interim-order-to-stay-the-selection-and-appointment-of-election-commissioners/

Here we explain why a Bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta has refused to interfere with the appointments of two new Election Commissioners on March 14.


LAST week, the Supreme Court declined to issue an interim Order to stay the selection and appointment of Election Commissioners under the recently enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023.

A Bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta also refused to interfere with the appointments of two Election Commissioners, Gyanesh Kumar and Sukhbir Singh Sandhu on March 14.

The Bench, however, flagged the hurried manner in which the two new Election Commissioners were appointed without the full details and particulars of the candidates being shared with the Leader of the Opposition in Lok Sabha.

The Bench opined that any interim Order at this stage, with the general elections so close by, would create chaos and a virtual constitutional breakdown.

Background

Article 324(2) of the Constitution provides that the Election Commission of India shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President of India may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by the Parliament, be made by the President.

The Bench flagged the hurried manner in which the two new Election Commissioners were appointed without the full details and particulars of the candidates being shared with the Leader of the Opposition in Lok Sabha.

The absence of a statute governing the appointments of the Chief Election Commissioner and Election Commissioners allowed the executive to appoint the Chief Election Commissioner and Election Commissioner exclusively.

Since the Parliament did not enact any law laying down the procedure for the appointments of the Chief Election Commissioner and Election Commissioners even decades after Independence, petitions were filed in the Supreme Court seeking the establishment of a transparent appointment procedure whereby appointments to the Election Commission of India were made by a collegium that included the Chief Justice of India (CJI) and the Leader of the Opposition in Lok Sabha.

Eventually, on March 2, 2023, a Constitution Bench held that the appointment of the Chief Election Commissioner and Election Commissioners would be on the recommendation of a committee consisting of the CJI, the Prime Minister and the Leader of the Opposition in Lok Sabha.

In the very same judgment, the Constitution Bench stated that its direction would hold good till a law was made by the Parliament.

Taking a cue from the observation made by the Constitution Bench, the Union government introduced a Bill to exclude the CJI from the selection process of the Chief Election Commissioner and Election Commissioners.

On December 28, 2023, the Parliament enacted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The Act has dropped the CJI from the selection committee to appoint the Chief Election Commissioner and other Election Commissioners. The selection committee under the new law to appoint the Chief Election Commissioner and Election Commissioners provides the Executive a two-thirds voting majority.

The law also provides that a Chief Election Commissioner and other Election Commissioners be appointed from amongst persons who are holding or have held a post equivalent to the rank of secretary to the government of India and who are persons of integrity with knowledge of and experience in the management and conduct of elections.

Under the new law, the search committee headed by the minister of law and justice and comprising two other members not below the rank of secretary to the government of India shall prepare a panel of five persons for consideration by the selection committee, for appointment as a Chief Election Commissioner and other Election Commissioners.

The Bench opined that any interim Order at this stage, with the general elections so close by, would create chaos and a virtual constitutional breakdown.

Thereafter, a panel comprising the Prime Minister; the Leader of the Opposition in Lok Sabha and a Union cabinet minister to be nominated by the Prime Minister, shall recommend the name for the appointment to be made by the President.

The 2023 Act was brought into force on January 2, 2024, ahead of the retirement of Election Commissioner Anup Chandra Pandey on February 14, 2024.

Challenge in the Supreme Court

The day the 2023 Act was brought into force, Congress leader Dr Jaya Thakur and others filed a petition under Article 32 of the Constitution of India challenging it.

In her petition, Thakur contended that the 2023 Act compromises free and fair elections because the exclusion of the CJI from the committee will ensure that the Prime Minister and his nominee will always have the majority to make decisions regarding the appointment of election commissioners.

On January 12, 2024, a Bench of Justices Khanna and Datta issued notice on the petition and listed it in April even though the vacancy in the commission was slated to arise on February 14, on the retirement of Pandey.

On February 13, 2024, a Bench of Justices Khanna and Datta issued notice on a petition filed by the Association for Democratic Reforms (ADR) challenging the 2023 Act. The Bench flatly refused to grant any stay of the 2023 Act. It tagged the ADR’s petition with the petition filed by Thakur.

Resignation of Arun Goel

On March 9, 2024, Arun Goel’s out-of-the-blue resignation from the post of election commissioner resulted in the Election Commission of India being reduced to a one-man team consisting only of the Chief Election Commissioner Rajiv Kumar.

Taking a cue from the observation made by the Constitution Bench, the Union government introduced a Bill to exclude the CJI from the selection process of the Chief Election Commissioner and Election Commissioners.

Goel’s resignation had come as much of a surprise as his hurried appointment as an Election Commissioner in 2022, which had also been questioned by a Constitution Bench of the Supreme Court.

Immediately after the resignation of Goel, applications were filed in the Supreme Court between March 11 and March 12 seeking to stay the appointment process.

Meanwhile, on March 14, the President appointed two new election commissioners. The Bench, on March 15, directed to list the matter to hear the interim applications on March 21.

No stay of the 2023 Act

In its Order, the Bench has recorded that 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 Constitution Bench in Anoop Baranwal versus Union of India, by substituting the CJI 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.

Secondly, it was argued that the provision has a direct and potential impact on the conduct of transparent, free and fair elections, one of the foundational requirements of democracy.

In addition, the petitioners challenged the appointment of the Chief Election Commissioner and the Election Commissioners on the grounds of procedural irregularity, affecting the fairness, transparency and objectivity in the selection process in question since the Leader of the Opposition in Lok Sabha 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 only before the meeting for the selection of the Election Commissioners, which was held on March 14. Thus, the Leader of the Opposition in Lok Sabha was denied the opportunity to choose and have his voice heard.

The 2023 Act was brought into force on January 2, 2024, ahead of the retirement of Election Commissioner Anup Chandra Pandey on February 14, 2024.

It was also pointed out that the petition challenging the 2023 Act was sub-judice before the court since January 2, 2024, 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 14, 2024. The Union government submitted that the meeting fixed for March 15 was shifted to March 14 on March 9, before the listing of the stay applications by the court on March 15.

On the merits of the stay applications, the Bench opined that it is a well-settled position of law that in matters involving the constitutionality of legislation, 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.

The Bench observed that the petitioners asked for an interim Order to direct fresh selection with the CJI as a member of the selection committee. This, the Bench said, would be plainly impermissible without declaring Section 7(1) of the 2023 Act as unconstitutional.

It added that if such a contention were accepted, it would be akin to enacting or writing a new law replacing or modifying Section 7(1) of the Act, as enacted by the Parliament.

More importantly, the Bench noted that any interjection or stay by the Supreme Court would be highly “inappropriate” and “improper” as it would disturb the 18th general elections for Lok Sabha which have been scheduled and are now fixed to take place from April 19 to June 1.

Balance of convenience, apart from a 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.

[The] interlocutory remedy is normally intended to preserve the status quo unless there are exceptional circumstances which tilt the scales and balance of convenience on account of any resultant injury.

In our opinion, a 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 Bench held.

The Bench also noted that given the importance and humongous task undertaken by the Election Commission, the presence of two more Election Commissioners would bring about a balance and check.

The day the 2023 Act was brought into force, Congress leader Dr Jaya Thakur and others filed a petition under Article 32 of the Constitution of India challenging it.

Referring to the decision of the court in T.N. Seshan versus Union of India, the Bench said that the concept of plurality in Article 324 of the Constitution is necessary and desirable.

The Bench turned to the procedure adopted in the selection of the two Election Commissioners. It expressed its concerns on the procedure adopted for the selection of the incumbents to the two vacant posts of Election Commissioners, a significant constitutional post.

On March 12, the Leader of the Opposition in Lok Sabha Adhir Ranjan Chowdhury had requested the secretary, legislative department, to share details of the shortlisted names.

On March 13, the secretary had sent a list of eligible persons, more than 200 in number, being considered by the search committee to Chowdhury. The search committee had not carried out the shortlisting exercise by then.

On March 13, the search committee, in its meeting, could not finalise and shortlist the names.

On March 14, in its meeting, the search committee recommended a panel of six names for consideration of the selection committee, which were then circulated and forwarded to the members of the selection committee, including the Leader of the Opposition in Lok Sabha.

On March 14, the selection committee met and recommended the names of Gyanesh Kumar and Dr Sukhbir Singh Sandhu to the President of India for appointment as Election Commissioners. The President of India approved the recommendation on the same day.

The Bench observed that 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.

The procedural sanctity of the selection process requires fair deliberation with an examination of the background and merits of the candidate. The sanctity of the process should not be affected,” the Bench said.

Arun Goel’s resignation had come as much of a surprise as his hurried appointment as an Election Commissioner in 2022, which had also been questioned by a Constitution Bench of the Supreme Court.

Yet, the Bench said that notwithstanding these shortcomings, it would be inappropriate to interfere with the appointments keeping in view the timelines for the upcoming 18th general elections for Lok Sabha. The Bench also noted that the petitioners had not commented or questioned the merits of the persons selected or appointed as Election Commissioners.

Referring to Dr B.R. Ambedkar’s famous quote: “However good a constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a constitution may be, if those implementing it are good, it will prove to be good,” the Bench remarked:

Election Commission 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 the constitutional role and propriety in their functioning.”

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