The Supreme Court, today, dismissed the application for stay on the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 that excluded the Chief Justice of India from appointment of Election Commissioners and gave liberty to the Centre to file a counter affidavit within six weeks.

The Bench of Justice Sanjiv Khanna and Justice Dipankar Datta held “All the Applications for stay are dismissed, reasons to be given later.”

Today, during the hearing Advocate Prashant Bhushan for the Association for Democratic Reforms briefly stated the contents of the Affidavit filed by the Centre on March 20, 2024 and the Letter of the Opposition dated March 12, 2024. He also referred to Para 304 of the Anoop Baranwal v. Union of India.

Justice Khanna said, “If we go by the gist of Article 324(2), it is only the President who has the power. That is the reason we did not interfere.”

Bhushan also referred to the 3-judges case and the concept of independence of the judiciary. He said, “The Constitutional amendment was struck down as it was against the basic structure doctrine.” To which, Justice Khanna replied, “Appointment of Judges is different than appointment of Election Commissioners.”

Justice Datta asked Bhushan, “If the judgment of Anoop Baranwal would not have been there and this law came, then what would be the ground?"

“Same reason- that is Basic Structure Doctrine”, Bhushan answered.

Advocate Prashant Bhushan referred to various judgments in which the Supreme Court has stayed the implementation of legislation or an amendment.

Justice Khanna also remarked with reference to the Anoop Baranwal judgment, “They have not passed any law, they have just filled the vacuum, that is, until there is no law, this mechanism can be followed.”

Advocate Kaleeswaram Raj also appeared for one of the Petitioners and gave reference to the Farm Laws Judgment in which the three farm bills passed by the Parliament were stayed. “Once the Parliament passes any law, it doesn't get judicial immunity. That is why the Court has stayed the law.”

Solicitor General Tushar Mehta appeared on behalf of the Centre and submitted that it is mandatory to constitute the 18th Lok Sabha by conducting elections. He also said, “The State Elections in the Andhra Pradesh, Arunachal Pradesh, Odisha and Sikkim along with National General Elections are to be organised which requires time and background work.”

The Court also discussed the procedure of Appointment and the Committee. Justice Datta asked the SG, “For one vacancy, there are five recommendations, and for two vacancies there are only six recommendations? Why not 10? This is what appears from the record. They can consider 200 names, but what is the time given? Two hours..? for 200 names. You could have been transparent.”

Justice Datta further remarked, “When the Leader of the opposition wanted some time to consider the names, you had no time at your disposal. Justice should not only be done but also seen to have been done. Why give any opportunity to raise objections? We are dealing with the Representation of People Act which according to me is the highest after the Constitution.”

Senior Advocate Sanjay Parekh appearing for some of the petitioners submitted, “According to me, in all seriousness, this Act will put an end to the democratic process.” However, the Court asked him not to make such remarks.

Accordingly, the Court refused to grant any interim stay on the implementation of the Act.

The Petition was filed before the Court which challenges the constitutional validity of the Chief Election Commissioner Act, 2023 particularly its Section 7 as being violative of Article 14 of the Constitution of India and sought to stay on the implementation of the Act.

On March 20, 2024, the Centre filed an Affidavit before the Court stating “It may be noted that the credentials of the persons finally appointed to the post of Election Commissioner have at no point been called into question. No objection whatsoever has been raised about the fitness eligibility or competence of any of the persons named in the list to serve as Election Commissioner".

It further stated, “There are no allegations against the Election Commissioners appointed are also made. Instead a political controversy is sought to be created only on the basis of bare, unsupported and pernicious statements about certain vague and unspecified motives behind the appointment. Where no question has been raised about the qualifications of candidates to hold a constitutional post nor has any material been brought on record to show that the candidates are unfit for office, no prima facie case can be said to have been made out. On that ground alone, the application for stay ought to be dismissed.”

It was also mentioned by the Petitioner that on February 14, 2024, Anup Kumar Pandey, Election Commissioner, demitted his post as he had completed his term, leading to a vacancy. Without any reason or explanation on 10th March 2024, the Government of India issued a notification stating that Arun Goel, Election Commissioner has resigned from his post and the same has been accepted by the Hon’ble President of India. Therefore, there are two posts of Elections Commissioners lying vacant and the Election Commission is functioning at less than the envisioned capacity of three official posts.

Earlier, the Supreme Court had refused to stay the law while issuing notice in a batch of petitions, where the lead case was preferred by Congress Leader Jaya Thakur. Previously, on March 2, 2023, the Constitution Bench of the Apex Court in Anoop Baranwal v. Union of India held that the appointment of Chief Election Commissioner and other Election Commissioners shall be made by the President on the advice of a committee comprising the Prime Minister, leader of Opposition in Lok Sabha (or leader of the largest opposition party in Lok Sabha) and the Chief Justice of India.

The matter is now listed for a further date.

Cause Title: Association For Democratic Reforms v. Union of India (W.P.(C) No. 87 of 2024) and Dr. Jaya Thakur Vs Union Of India (W.P. (C) No. 14 of 2024).