Supreme Court Refuses To Stay Law Dropping CJI From Panel To Select Election Commissioners, Posts Matter To April 2024

The Supreme Court on Tuesday (February 13) refused to stay the operation of Section 7 of the Chief Election Commissioner and Other Election Commissioners Act, 2023 in a fresh petition challenging the Constitutionality of the provision.

While issuing notice on the plea moved by the Association for Democratic Reforms, the Bench of Justices Sanjiv Khanna and Dipankar Datta noted that a similar matter was pending before the Court and coming up in April 2024. Accordingly, it directed that the present case be listed in April, 2024 alongwith the same.

In response to Advocate on Record Prashant Bhushan making a prayer for stay of Section 7 (on behalf of the petitioner), considering that Election Commissioner Anup Chandra Pandey is retiring on February 14, the Bench said that it could not virtually grant the prayer in the main petition as interim relief.

Bhushan pressed that the prayers may become infructuous if the stay is not granted before the upcoming Lok Sabha elections, however Justice Khanna opined that "constitutional validity matters are never infructuous" and declined to entertain the request.

Bhushan's suggestions to issue notice to the Solicitor General of India and for listing the matter next week were also declined, with Khanna, J observing, "it is not a matter which can be decided like that. It will take time...We have to now examine in terms of the judicial review powers...we have to go into all those aspects".

The Court was hearing the petitioner's public interest litigation under Article 32 of the Constitution challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, especially Section 7 thereof for "violating Article 14, basic features of the Constitution and overruling a decision of this Hon'ble Court without altering the basis."

Section 7 of the 2023 Act stipulates that the Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of the Prime Minister (Chairperson), the Leader of Opposition in the House of the People (Member) and a Union Cabinet Minister to be nominated by the Prime Minister (Member).

By way of the PIL, the petitioner pleads that the 2023 Act has overturned the Constitution Bench decision of the Court in Anoop Baranwal v. Union of India (2023), where it was observed that leaving appointment of the members of Election Commission (who are critical for our electoral democracy) in the hands of the executive would be seriously detrimental to the health of our democracy and for the conduct of free and fair election.

The Court in Anoop Baranwal directed that appointment to the posts of CEC and ECs shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister, the Leader of Opposition in Lok Sabha and the Chief Justice of India. However, the petitioner claims, the 2023 Act has replaced the Chief Justice of India with a Cabinet Minister (to be nominated by the Prime Minister), restoring the pre-Anoop Baranwal position.

The petition points out that the 2023 Act was passed in Lok Sabha at a time when the majority of the opposition Members of Parliament were suspended by the Speaker. It further says that the Selection Committee "which is ex facie dominated and controlled by the members from executive" renders the selection process "vulnerable to manipulation" as it gives unfettered discretion to the ruling party to choose someone whose loyalty to it is ensured.

Case Title: ASSOCIATION FOR DEMOCRATIC REFORMS v. UNION OF INDIA, W.P.(C) No. 87/2024