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Synopsis

The Supreme Court has on March 22, 2024 said its 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. 

A bench of Justices Sanjiv Khanna and Dipankar Datta has made this observation 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.

The court said any interjection or stay will be highly inappropriate and improper as it would disturb the 18th General Election for the Lok Sabha scheduled between April 19, 2024 till June 01, 2024.  

It also said grant of stay would lead to uncertainty and confusion, if not chaos. 

The bench also sought to explain the Anoop Baranwal judgment of March, 2023, rendered by a Constitution bench led by Justice K M Joseph (since retired). "The judgment in Anoop Baranwal records that there was a legislative vacuum as the Parliament had not made any enactment as contemplated in Article 324(2). Given the unique nature of the provision and absence of an enactment, this court had issued directions constituting the Selection Committee as a pro-tem measure. This is clear from the judgment, which states that the direction shall hold good till a law is made by the Parliament," it said.

In its written order in applications filed by Congress leader Jaya Thakur and NGO Association for Democratic Reforms, the bench said it is plainly impermissible to direct fresh selection with the CJI as a member of the Selection Committee for appointment of two Election Commissioners by its interim orders.

"Given the importance and humongous task undertaken by the Election Commission, presence of two more ECs brings about a balance and check. The concept of plurality in Article 324 of the Constitution, which has been noticed and approved by this Court in T.N. Seshan v. Union of India (1995), is necessary and desirable," it added.

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.

UoI had stated before the Supreme Court the independence of the Election Commission, or any other organisation or authority, does not arise from and is not attributable to the presence of a judicial member in the Selection Committee.

In an affidavit, Law and Justice Ministry submitted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is a significant improvement on the existing status quo and provides a far more democratic, collaborative and inclusive exercise for Election Commissioners in line with Supreme Court's Constitution bench Anoop Baranwal judgment (2023).

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