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Synopsis

After hearing the parties for over two hours today morning, a division bench of the Supreme Court has refused to stay the new law on appointment to the posts of Chief Election Commissioner and the Election Commissioners.

"We are dismissing the applications. Reasons to follow", a bench of Justices Sanjiv Khanna and Dipankar Datta said.

Referring to the judgment in Anoop Baranwal, wherein the parliament was asked to frame a law on the appointments, court said today, "The judgment says there was a vacuum but the court never said that we are inviting the parliament to make a law in a particular way..".

Court further clarified that it could not be said by the petitioners that Election Commission was under the thumb of the executive.

Recently, the UoI 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).

Last week, while hearing the batch of petitions challenging the new law a Justice Sanjiv Khanna led bench had said, "We do not stay legislations by way of interim orders..".

Congress party member, Dr Jaya Thakur, has also filed an application seeking a direction to the Union government not to appoint two Election Commissioners as per the provisions of the new law enacted in December, 2023 in view of announcement of Lok Sabha polls 2024 anytime soon.

The main petition has been filed to declare the Section 7 and 8 of the Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and terms of office Act 2023, as ultra vires under Articles 14, 21, 50 and 324 of the Constitution of India.

It contended there are violation of the principles of free and fair election, apart from being contrary to the principles laid down by this court in the case of “Anoop Baranwal Versus Union of India”.

The plea seeks to declare Section 7 and 8 of THE CHIEF ELECTION COMMISSIONER AND OTHER ELECTION COMMISSIONERS (APPOINTMENT, CONDITIONS OF SEVICE AND TERM OF OFFICE) ACT, 2023 as ultra vires under Articles 14, 21, 50 and 324 of the Constitution of India.

As per the said Sections appointment to the posts of Chief Election Commissioner and the Election Commissioners shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister.

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