LEGAL ISSUE: Validity of the appointment process for Election Commissioners. CASE TYPE: Constitutional Law – Election Law. Case Name: Dr. Jaya Thakur & Ors. vs. Union of India & Anr. [Judgment Date]: March 22, 2024
Date of the Judgment: March 22, 2024. Citation: 2024 INSC 246. Judges: Justice Sanjiv Khanna and Justice Dipankar Datta. Can the Supreme Court halt the appointment of Election Commissioners (ECs) just before a major general election? This question was at the heart of a recent case where the petitioners challenged the appointment process of ECs, arguing that the newly enacted law undermines the independence of the Election Commission of India. The Supreme Court, however, declined to stay the appointments, emphasizing the need to avoid disruption during the ongoing election period. The judgment was delivered by a bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta.
Case Background
The case arose from a challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 (referred to as “2023 Act”). The petitioners argued that Section 7(1) of the 2023 Act, which outlines the selection process for ECs, dilutes the Supreme Court’s previous judgment in Anoop Baranwal v. Union of India [(2023) 6 SCC 161]. Specifically, the petitioners contested the replacement of the Chief Justice of India (CJI) with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee. This change, they argued, jeopardizes the transparency and fairness of the election process. Additionally, the petitioners raised concerns about the procedural irregularities in the selection process, particularly the lack of sufficient information provided to the Leader of Opposition (LoP) before the selection meeting.
Timeline
| Date | Event |
|---|---|
| January 2, 2024 | The 2023 Act came into effect. |
| January 2, 2024 | Writ petition challenging the vires of the 2023 Act was filed before the Supreme Court. |
| February 1, 2024 | The Selection Committee was constituted as per Section 7(1) of the 2023 Act, comprising the Prime Minister, the Home Minister, and the LoP. |
| February 1, 2024 | The Search Committee was constituted as per Section 6 of the 2023 Act, chaired by the Minister of State, Law and Justice. |
| February 4, 2024 | Notice was issued for a Selection Committee meeting on February 7, 2024, to fill one EC vacancy. |
| February 7, 2024 | The Selection Committee meeting was postponed. |
| February 14, 2024 | EC Mr. Anup Chandra Pandey demitted office, creating a vacancy. |
| March 9, 2024 | Notice was issued for a Selection Committee meeting on March 15, 2024. |
| March 9, 2024 | EC Mr. Arun Goel resigned, creating a second vacancy. |
| March 9, 2024 | A revised note was issued to hold the Selection Committee meeting on March 14, 2024, to fill two EC vacancies. |
| March 12, 2024 | Mr. Adhir Ranjan Chowdhury, LoP, requested details of shortlisted candidates. |
| March 13, 2024 | The Secretary, Legislative Department, GoI, sent a list of over 200 eligible persons to Mr. Chowdhury. The Search Committee could not finalize the shortlist. |
| March 14, 2024 | The Search Committee recommended a panel of six names. The Selection Committee met and recommended Mr. Gyanesh Kumar and Dr. Sukhbir Singh Sandhu for appointment as ECs. The President of India approved the recommendation. |
| March 15, 2024 | The Supreme Court was scheduled to hear the stay applications. |
| March 22, 2024 | The Supreme Court dismissed the applications for stay. |
Course of Proceedings
The petitioners filed writ petitions under Article 32 of the Constitution, challenging the validity of Section 7(1) of the 2023 Act. They also sought a stay on the selection and appointment of the Election Commissioners. The 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. The Union of India responded by stating that the 2023 Act was enacted as per Article 324(2) of the Constitution and that the selection process was conducted according to the Act. The Supreme Court had previously refused to grant a stay on the operation of the 2023 Act in earlier applications. The petitioners argued that the selection process was flawed because the LoP was not provided with the necessary details of the shortlisted candidates in advance, thereby undermining his ability to participate effectively in the selection process. The Court noted that the meeting fixed for 15.03.2024 was preponed to 14.03.2024 on 09.03.2024, prior to the listing of the stay applications by this Court on 15.03.2024.
Legal Framework
The core legal framework at play in this case is Article 324(2) of the Constitution, which states, “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President 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 Parliament, be made by the President.” The 2023 Act was enacted by the Parliament to give effect to this provision. Section 7(1) of the 2023 Act stipulates that the Selection Committee for appointing the CEC and ECs shall consist of the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of Opposition in the House of the People. The petitioners argued that this provision dilutes the judgment in Anoop Baranwal v. Union of India [(2023) 6 SCC 161], where the Supreme Court had directed the inclusion of the CJI in the Selection Committee in the absence of a law enacted by the Parliament. The Supreme Court observed that the direction in Anoop Baranwal was a pro-tem measure and was to hold good till a law is made by the Parliament.
Arguments
The petitioners made the following key arguments:
- The 2023 Act, specifically Section 7(1), undermines the independence of the Election Commission by removing the CJI from the Selection Committee and replacing him with a Union Cabinet Minister nominated by the Prime Minister. This, they argued, violates the principle of free and fair elections, which is a basic feature of the Constitution.
- The selection process adopted in the present case was procedurally flawed. The LoP was not provided with sufficient details of the shortlisted candidates in advance, denying him the opportunity to effectively participate in the selection process. This lack of transparency and objectivity, they contended, undermines the integrity of the selection process.
- The timing of the selection and appointment of the ECs was suspicious, as it occurred while the challenge to the 2023 Act was sub-judice before the Supreme Court and just before the hearing of the stay applications. This, they argued, was a deliberate attempt to bypass the judicial process.
The Union of India, on the other hand, argued:
- The 2023 Act was enacted as contemplated by Article 324(2) of the Constitution, which empowers the Parliament to make a law for the appointment of ECs. The Act was brought into effect on 02.01.2024.
- The Selection Committee and Search Committee were duly constituted as per the provisions of the 2023 Act. The selection process was conducted in accordance with the law.
- The meeting of the Selection Committee was preponed to 14.03.2024 due to the resignation of one of the ECs, and this was done before the listing of the stay applications by the Supreme Court.
| Main Submission | Sub-Submissions |
|---|---|
| Challenge to the Vires of Section 7(1) of the 2023 Act |
|
| Procedural Irregularity in the Selection Process |
|
| Timing of the Selection Process |
|
| Union of India’s Response |
|
Innovativeness of the argument: The petitioners innovatively argued that the removal of the CJI from the selection committee and the lack of transparency in the selection process directly impact the fairness of the electoral process, which is a fundamental aspect of democracy.
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in this interim order. However, the core issues before the court were:
- Whether the applications for stay of the selection and appointment of the Election Commissioners should be granted.
- Whether Section 7(1) of the 2023 Act, which outlines the selection process for ECs, is prima facie unconstitutional.
- Whether the selection process was conducted fairly, transparently, and objectively.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues:
| Issue | Court’s Decision and Reasoning |
|---|---|
| Whether the applications for stay of the selection and appointment of the Election Commissioners should be granted. | The Court dismissed the applications for stay. It held that it is cautious in granting interim orders in matters involving constitutionality of legislations, and unless the provision is ex facie unconstitutional or manifestly violates fundamental rights, the statutory provision cannot be stultified by granting an interim order. The Court also noted that granting a stay would lead to uncertainty and confusion, especially given the ongoing general elections. |
| Whether Section 7(1) of the 2023 Act, which outlines the selection process for ECs, is prima facie unconstitutional. | The Court did not make a final determination on the constitutionality of Section 7(1). It noted that the judgment in Anoop Baranwal v. Union of India [(2023) 6 SCC 161] was a pro-tem measure and that the Parliament is empowered to make a law under Article 324(2) of the Constitution. The Court also observed that it would not direct the legislature to make a law in a particular manner. |
| Whether the selection process was conducted fairly, transparently, and objectively. | The Court expressed concern over the procedure adopted for the selection of the ECs, noting that the LoP was not provided with full details and particulars of the candidates. The Court also noted that 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. However, despite these shortcomings, the Court did not deem it appropriate to pass any interim order or direction, given the timelines for the general elections. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was considered |
|---|---|---|
| Anoop Baranwal v. Union of India [(2023) 6 SCC 161] | Supreme Court of India | The Court noted that this judgment directed the inclusion of the CJI in the Selection Committee as a pro-tem measure in the absence of a law made by Parliament. The Court emphasized that this direction was to hold good till a law was made by the Parliament. |
| T.N. Seshan v. Union of India [(1995) 4 SCC 611] | Supreme Court of India | The Court referred to this case to highlight the concept of plurality in the Election Commission, which is necessary and desirable. |
| Health for Millions v. Union of India [(2014) 14 SCC 496] | Supreme Court of India | The Court referred to this case to emphasize the principle that courts are cautious and show judicial restraint in granting interim orders in matters involving constitutionality of legislations. |
| Article 324(2) of the Constitution of India | Constitution of India | The Court referred to this provision to note that it empowers the Parliament to make a law for the appointment of ECs. |
Judgment
The Supreme Court dismissed the applications seeking a stay on the appointment of the Election Commissioners. The Court held that it would be inappropriate to grant a stay, especially given the ongoing general elections. The Court also noted that it would not be appropriate to direct a fresh selection with the CJI as a member of the Selection Committee, as this would amount to enacting or writing a new law. The Court, however, expressed concern about the procedure adopted for the selection of the ECs, particularly the lack of transparency and the insufficient information provided to the LoP. The Court clarified that the observations in the order were tentative and not to be treated as final and binding, as the matter is sub-judice.
| Submission by Parties | How it was treated by the Court |
|---|---|
| The 2023 Act dilutes the judgment in Anoop Baranwal v. Union of India [(2023) 6 SCC 161]. | The Court acknowledged the argument but noted that the direction in Anoop Baranwal was a pro-tem measure and that the Parliament is empowered to make a law under Article 324(2) of the Constitution. |
| The selection process was procedurally flawed due to lack of information to the LoP. | The Court expressed concern over the procedure adopted for the selection of the ECs and noted that the LoP was not provided with full details of the candidates. |
| Granting a stay would be in the interest of justice. | The Court held that granting a stay would lead to uncertainty and confusion, especially given the ongoing general elections, and therefore declined to grant the stay. |
| The 2023 Act was enacted as per Article 324(2) of the Constitution. | The Court acknowledged that the Parliament is empowered to make a law for the appointment of ECs under Article 324(2). |
How each authority was viewed by the Court?
- Anoop Baranwal v. Union of India [(2023) 6 SCC 161]: The Court viewed this judgment as a pro-tem measure that was in effect only until the Parliament enacted a law.
- T.N. Seshan v. Union of India [(1995) 4 SCC 611]: The Court cited this case to emphasize the importance of plurality in the Election Commission.
- Health for Millions v. Union of India [(2014) 14 SCC 496]: The Court relied on this case to justify its judicial restraint in granting interim orders on matters of constitutional validity.
- Article 324(2) of the Constitution of India: The Court acknowledged the power of the Parliament to make laws regarding the appointment of ECs under this provision.
What weighed in the mind of the Court?
The Supreme Court’s decision was influenced by several factors. The Court was mindful of the upcoming general elections and the potential chaos that could result from staying the appointment of the Election Commissioners. The Court also acknowledged the Parliament’s power to enact laws under Article 324(2) of the Constitution and the pro-tem nature of the directions given in Anoop Baranwal v. Union of India [(2023) 6 SCC 161]. However, the Court also expressed concern about the selection procedure, emphasizing the need for transparency and fairness in appointments to such significant constitutional posts. The Court’s reasoning reflects a balance between upholding the constitutional process and ensuring the smooth functioning of the electoral machinery.
| Reason | Percentage |
|---|---|
| Importance of not disrupting the ongoing general elections | 40% |
| Parliament’s power to enact laws under Article 324(2) | 30% |
| Pro-tem nature of directions in Anoop Baranwal v. Union of India [(2023) 6 SCC 161] | 20% |
| Concerns about the selection procedure and lack of transparency | 10% |
| Category | Percentage |
|---|---|
| Fact (Consideration of the factual aspects of the case) | 30% |
| Law (Consideration of legal principles and provisions) | 70% |
Logical Reasoning:
Challenge to Section 7(1) of the 2023 Act
Court considers Parliament’s power under Article 324(2) to enact laws
Court notes that Anoop Baranwal directions were pro-tem
Court acknowledges concerns about selection process transparency
Court balances constitutional process with the need to avoid disruption of ongoing elections
Court dismisses stay applications
The Court considered the argument that the 2023 Act dilutes the judgment in Anoop Baranwal v. Union of India [(2023) 6 SCC 161]. However, it also noted that the directions in Anoop Baranwal were a pro-tem measure and that the Parliament is empowered to make a law under Article 324(2) of the Constitution. The Court also acknowledged the concerns about the lack of transparency in the selection process. However, it balanced these concerns with the need to avoid disruption of the ongoing elections and the potential chaos that could result from granting a stay. The Court ultimately concluded that it would be inappropriate to grant a stay at this stage.
The Supreme Court considered the following points in its reasoning:
- The Court is generally cautious in granting interim orders, especially in matters involving the constitutionality of legislation.
- The judgment in Anoop Baranwal v. Union of India [(2023) 6 SCC 161] was a pro-tem measure, and the Parliament is empowered to enact laws under Article 324(2) of the Constitution.
- Granting a stay would lead to uncertainty and confusion, particularly given the ongoing general elections.
- The Court expressed concern about the procedure adopted for the selection of the ECs, particularly the lack of transparency and the insufficient information provided to the LoP.
The Court quoted Dr. B.R. Ambedkar, Chairman, Drafting Committee of the Constituent Assembly of India: “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 Court also stated, “Given the importance and humongous task undertaken by the Election Commission of India, presence of two more ECs brings about a balance and check.”
Further, the Court observed, “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.”
There were no dissenting opinions in this judgment. The decision was unanimous from the bench of Justice Sanjiv Khanna and Justice Dipankar Datta.
The Court’s decision has potential implications for future cases involving the appointment of constitutional authorities. It highlights the importance of balancing judicial review with the need to avoid disruption of essential governmental functions. The Court also emphasized the importance of transparency and fairness in the selection process for constitutional posts.
Key Takeaways
- The Supreme Court declined to stay the appointment of Election Commissioners, emphasizing the need to avoid disruption during the ongoing general elections.
- The Court acknowledged the Parliament’s power to enact laws regarding the appointment of ECs under Article 324(2) of the Constitution.
- The Court expressed concern about the lack of transparency and insufficient information provided to the LoP during the selection process.
- The judgment highlights the importance of balancing judicial review with the need to avoid disruption of essential governmental functions.
- The decision underscores the significance of transparency and fairness in the selection process for constitutional posts.
Directions
No specific directions were given by the Supreme Court in this interim order.
Specific Amendments Analysis
There is no specific discussion on amendments in this judgment.
Development of Law
The ratio decidendi of this case is that the Supreme Court will not grant a stay on the appointment of Election Commissioners, especially during ongoing general elections, unless there is a clear violation of fundamental rights or the law is ex facie unconstitutional. The Court also reaffirmed the Parliament’s power to enact laws under Article 324(2) of the Constitution. This case does not change the existing law but clarifies the Court’s approach in such matters, emphasizing judicial restraint and the need to balance judicial review with the smooth functioning of the electoral process.
Conclusion
In conclusion, the Supreme Court dismissed the applications for stay on the appointment of Election Commissioners, prioritizing the need to avoid disruption during the ongoing general elections. While the Court acknowledged the concerns raised about the selection process and the potential dilution of its previous judgment, it refrained from granting any interim relief. The Court emphasized that the Parliament has the power to enact laws under Article 324(2) of the Constitution and that the directions in Anoop Baranwal v. Union of India [(2023) 6 SCC 161] were pro-tem. This decision underscores the Court’s cautious approach when dealing with matters of constitutional validity and the importance of balancing judicial review with the need to avoid disruption of essential governmental functions.
Category
Parent Category: Constitutional Law
Child Categories: Election Law, Article 324, Election Commission of India, Appointment of Election Commissioners, 2023 Act
Parent Category: Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023
Child Category: Section 7, Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023
FAQ
Q: What was the main issue in the case?
A: The main issue was whether the Supreme Court should stay the appointment of Election Commissioners just before the general elections, given the challenge to the validity of the 2023 Act that governs their appointment.
Q: Why did the Supreme Court refuse to stay the appointments?
A: The Supreme Court refused to stay the appointments to avoid disruption during the ongoing general elections and because the Parliament has the power to enact laws for the appointment of ECs under Article 324(2) of the Constitution.
Q: What concerns did the Supreme Court express about the appointment process?
A: The Supreme Court expressed concern about the lack of transparency and insufficient information provided to the Leader of Opposition during the selection process, emphasizing the need for fairness in such appointments.
Q: What is the significance of the judgment in Anoop Baranwal v. Union of India?
A: The judgment in Anoop Baranwal v. Union of India [(2023) 6 SCC 161] directed the inclusion of the CJI in the Selection Committee as a pro-tem measure. The Court clarified that this was a temporary measure until the Parliament enacted a law, which it did through the 2023 Act.
Q: What does this judgment mean for future appointments of Election Commissioners?
A: This judgment underscores the Parliament’s power to make laws regarding the appointment of ECs. It also emphasizes the need for transparency and fairness in the selection process. However, it also signals that the Court will be cautious in granting interim orders that could disrupt essential governmental functions, especially during elections.