The Supreme Court, on February 13, 2024, declined to grant an interim stay on Section 7 of the Chief Election Commissioner and Other Election Commissioners Act, 2023.
The Supreme Court, on February 13, 2024, declined to grant an interim stay on Section 7 of the Chief Election Commissioner and Other Election Commissioners Act, 2023 which says,
The Chief Election Commissioner and other Election Commissioners shall be
appointed by the President on the recommendation of a Selection Committee consisting
of—
(a) the Prime Minister—Chairperson;
(b) the Leader of Opposition in the House of the People—Member;
(c) a Union Cabinet Minister to be nominated by the Prime Minister—Member.
This decision came in response to a petition challenging the constitutionality of the provision, which has sparked widespread debate over the independence of the Election Commission and the process of appointing its members.
The petition, filed by the Association for Democratic Reforms, was brought before a bench comprising Justices Sanjiv Khanna and Justices Dipankar Datta. The justices noted the presence of a “similar matter” already pending before the court, slated for consideration in April 2024. Consequently, they decided to “list the present case in April, 2024 along with the same.”
The crux of the petitioner’s argument, presented by Advocate on Record Prashant Bhushan, centered on the urgent need to stay Section 7, especially given the imminent retirement of Election Commissioner Anup Chandra Pandey on February 14. Bhushan’s plea underscored the potential for the issue to become “infructuous” in light of the upcoming Lok Sabha elections. However, Justice Khanna countered this by stating, “constitutional validity matters are never infructuous,” thereby rejecting the request for an interim stay.
Justice Khanna further elaborated on the complexity of the matter, emphasizing that
“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.”
This statement reflects the court’s approach to carefully scrutinize the legislative changes affecting the Election Commission’s autonomy and the appointment of its members.
The contentious Section 7 of the 2023 Act specifies that the Chief Election Commissioner and other Election Commissioners shall be appointed by the President based on the recommendation of a Selection Committee. This committee is to be composed of the Prime Minister as the Chairperson, the Leader of Opposition in the House of the People as a Member, and a Union Cabinet Minister nominated by the Prime Minister also as a Member.
This legislative change has been criticized for undermining the Election Commission’s independence by altering the composition of the selection committee, particularly by replacing the Chief Justice of India with a Cabinet Minister nominated by the Prime Minister. The petitioner argues that this move violates Article 14, the basic features of the Constitution, and effectively overturns the Supreme Court’s decision in “Anoop Baranwal v. Union of India (2023)” without altering its foundational basis.
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The “Anoop Baranwal” case had previously directed that appointments to the CEC and ECs should be made by the President based on the advice of a committee comprising the Prime Minister, the Leader of Opposition in Lok Sabha, and the Chief Justice of India. The petitioner contends that the 2023 Act’s deviation from this directive compromises the electoral democracy’s integrity and the conduct of free and fair elections.
Moreover, the petition highlights the circumstances under which the 2023 Act was passed in the Lok Sabha, pointing out that it occurred when the majority of opposition Members of Parliament were suspended by the Speaker. This, according to the petitioner, makes the selection process “vulnerable to manipulation” and grants “unfettered discretion” to the ruling party, potentially compromising the impartiality of the Election Commission’s appointments.
As the Supreme Court prepares to delve deeper into these issues in April 2024, the case, titled “ASSOCIATION FOR DEMOCRATIC REFORMS v. UNION OF INDIA, W.P.(C) No. 87/2024,” stands as a critical examination of the balance between legislative authority and judicial oversight in safeguarding democratic institutions and principles in India.
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