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Synopsis

The Supreme Court recently observed that suspension of legislation pending consideration is an exception and not the rule.

"The said principle keeps in mind the presumption regarding constitutionality of legislation as well as the fact that the constitutional challenge when made may or may not result in success. The courts do not, unless eminently necessary to deal with the crises situation and quell disquiet, keep the statutory provision in abeyance or direct that the same be not made operational....", a bench of Justices Sanjiv Khanna and Dipankar Datta has added.

Courts strike a delicate balance to step-in in rare and exceptional cases, being mindful of the immediate need, and the consequences as to not cause confusion and disarray, it has been further observed.

These observations have been made by the top court while while dismissing the applications for stay on Section 7(1) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 which substituted the Chief Justice of India with a Union Cabinet Minister in the Selection Committee.

It has also been clarified that as per the Constitution bench judgment in Anoop Baranwal case, setting up a Selection Committee including Chief Justice of India for appointment of Chief Election Commissioner and Election Commissioners, was a pro-tem measure as the court is neither invited, nor if invited, would issue a mandamus to the legislature to make a law. 

The court has also noted since the petitioner have not commented or questioned the merits of the persons selected/appointed as ECs, remanding back the matter would not resolve the issue.

"EC 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 constitutional role and propriety in their functioning," the bench said.

On March 14, 2024, the Selection Committee headed by Prime Minister met and recommended the names of retired IAS officers Gyanesh Kumar and Sukhbir Singh Sandhu to the President for appointment as ECs. The President had approved the recommendation on March 14, 2024.

Case Title: Dr Jaya Thakur and Ors vs. Union of India and Anr.