Interfering with appointment of ECs would lead to chaos, says Supreme Court

"Suspension of legislation pending consideration is an exception and not the rule," the Supreme Court observed on Friday while dismissing pleas challenging the appointment of election commissioners under a 2023 law, saying interfering with the selection process would lead to "chaos and a virtual constitutional breakdown".

A bench of justices Sanjiv Khanna and Dipankar Datta, which pronounced the order dismissing the pleas against the appointment of election commissioners (ECs) Gyanesh Kumar and Sukhbir Singh Sandhu on Thursday, gave detailed reasons for its findings.

It, however, expressed concern on the procedure adopted for the selection of ECs and said such selection should be made with full details and particulars of the candidates circulated among all members of the selection panel comprising the prime minister, leader of the largest opposition party in Parliament and a Union minister nominated by the prime minister.

 

"Procedural sanctity of the selection process requires a fair deliberation with the examination of the background and merits of the candidate. The sanctity of the process should not be affected. Nevertheless, in spite of the said shortcoming, we do not deem it appropriate at this stage, keeping in view the timelines for the upcoming 18th general election for the Lok Sabha, to pass any interim order or direction. As indicated above, this would lead to chaos and a virtual constitutional breakdown," the bench said.

It said any interjection or stay by the court will be highly inappropriate and improper as it would disturb the general election, polling for which is scheduled from April 19 to June 1.

"Balance of convenience, apart from a prima facie case and irreparable injury, is one of the considerations which the court must keep in mind while considering any application for grant of stay or injunction. Interlocutory remedy is normally intended to preserve status quo unless there are exceptional circumstances which tilt the scales and balance of convenience on account of any resultant injury. In our opinion, grant of stay would lead to uncertainty and confusion, if not chaos," the bench said.

It said given the humongous task undertaken by the Election Commission, the presence of two more ECs brings about a "balance and check".

It said the concept of plurality in Article 324 of the Constitution was upheld by the court in the T N Seshan case in 1995 and added that it is necessary and desirable.

"Having regard to the aforesaid position, we are not inclined to accept the prayer for grant of stay. Accordingly, the applications seeking stay are dismissed. We would clarify that the observations in this order are tentative and not to be treated as final and binding, as the matter is sub-judice," the bench said.

Underlining the well-settled legal position, it said in matters involving constitutionality of laws, courts are cautious and show judicial restraint in granting interim orders.

"Unless the provision is ex-facie unconstitutional or manifestly violates fundamental rights, the statutory provision cannot be stultified by granting an interim order. Stay is not ipso facto granted for mere examination or even when some cogent contention is raised. Suspension of legislation pending consideration is an exception and not the rule," the bench said.

It said a 2023 verdict of the top court notices the appointments of the chief election commissioner (CEC) and ECs made from the 1950s till last year, but the court had intervened in the absence of any legislation in this regard.

"Article 324(2) postulates the appointment of the CEC and ECs by the president of India in the absence of any law made by Parliament. The judgment in the Anoop Baranwal (2023) records that there was a legislative vacuum as 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 Parliament," the bench said in a 10-page order.

It added that courts do not, unless eminently necessary to deal with a crisis situation and quell disquiet, keep a statutory provision in abeyance or direct that it be not made operational.

The bench said the petitioners have requested that the court may, by an interim order, direct fresh selection with the chief justice of India (CJI) as a member of the selection committee but this would be plainly impermissible, without declaring section 7(1) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023 unconstitutional.

"Further, we would be enacting or writing a new law replacing or modifying section 7(1) of the Act as enacted by Parliament, if such a contention was accepted," the bench said.

The court passed the order on a batch of pleas, including those filed by Congress leader Jaya Thakur and NGO Association for Democratic Reforms (ADR), who had sought a stay on the appointment of the new ECs and challenged the validity of the 2023 law that excluded the CJI from the selection panel to pick ECs and the CEC.