Dr. Jaya Thakur vs Union Of India

2024 INSC 246 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 14 OF 2024

DR. JAYA THAKUR & ORS. ..... PETITIONER

VERSUS

UNION OF INDIA & ANR. ..... RESPONDENT

W I T H

WRIT PETITION (CIVIL) NO. 13 OF 2024

WRIT PETITION (CIVIL) NO. 11 OF 2024

WRIT PETITION (CIVIL) NO. 87 OF 2024

A N D

WRIT PETITION (CIVIL) NO. 191 OF 2024

O R D E R

1. This order records reasons and decides the applications for

stay of selection and appointment of the Election

Commissioners1, in the writ petitions filed under Article 32

of the Constitution of India2, inter alia, challenging the

vires of Section 7(1) of the Chief Election Commissioner and

other Election Commissioners (Appointment, Conditions of

Signature Not Verified Service, and Term of Office) Act, 2023.3 Digitally signed by Deepak Guglani Date: 2024.03.23 15:44:23 IST 1 For short, “EC”.

Reason:

2 For short, “Constitution”.

3 For short, “2023 Act”.

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2. The primary grounds of challenge are twofold. First, Section

7(1) of the 2023 Act dilutes, if not amends or modifies, the

judgment of this Court’s Constitution Bench in Anoop Baranwal

v. Union of India4, by substituting the Chief Justice of India5

with a Union Cabinet Minister nominated by the Prime Minister

in the Selection Committee for the post of the Chief Election

Commissioner6 and the ECs. Secondly, the provision has a

direct and potential impact on the conduct of transparent,

free and fair elections, one of the foundational requirements

of democracy.

3. That apart, the selection process of the ECs, as adopted in

the present case, has been challenged on the ground of

procedural irregularity, affecting the fairness, transparency

and objectivity in the selection process in question. The

Leader of Opposition in the House of the People7 was not

furnished necessary details of the six shortlisted candidates

in advance to effectively participate in the selection

process8. The names and details were statedly furnished

minutes before the meeting for the selection of the ECs was

held on 14.03.20249. Thus, he has been denied the opportunity 4 (2023) 6 SCC 161.

5 For short, “CJI”.

6 For short, “CEC”.

7 For short, “LoP”. As per Explanation to Section 7(1) of the 2023 Act the leader of the single largest party in opposition of the Government in the House of the People shall be deemed to be the LoP, in case where the LoP has not been recognized.

8 Reliance is placed on the letter dated 12.03.2024 of Mr. Adhir Ranjan Chowdhury requesting for bio-profiles of the persons short-listed by the Search Committee well before the meeting of the Selection Committee. 9 Reliance is placed on the report dated 14.03.2024 published in the Indian Express quoting Mr Adhir Ranjan Chowdhury.

2 to choose and have his voice heard. Further, the writ petition

challenging the vires of the 2023 Act was sub-judice before

this Court since 02.01.2024, and therefore soon after the

resignation of one of the ECs, applications for stay were

filed, mentioned and directed to be listed for hearing before

this Court on 15.03.2024. However, the selection and

appointment of two ECs was made on 14.03.2024.10

4. The Union of India has filed a conjoint reply to the

applications for stay inter alia, stating that: -

a) The 2023 Act has been enacted as contemplated by Article

324(2) of the Constitution and was brought into effect on

02.01.2024.

b) On 01.02.2024, the Selection Committee, under Section

7(1) of the 2023 Act, was constituted, and consists of

the Prime Minister, the Home Minister and the LoP.

c) On 01.02.2024, the Search Committee, under Section 6 of

the 2023 Act, was constituted, and is chaired by Minister

of State, Law and Justice, Government of India 11 with the

Home Secretary, GoI and Secretary, Department of

Personnel and Training, GoI as members.

d) On 04.02.2024, notice was issued for convening meeting of

10 An earlier vacancy to the post of EC was created by virtue of EC – Mr. Anup Chandra Pandey demitting office on 14.02.2024. The second vacancy to the post of EC occured by virtue of the resignation of EC – Mr. Arun Goel on 09.03.2024. 11 For short, “GoI”.

3 the Selection Committee on 07.02.2024 for filling one

vacancy to the post of EC, as an EC had demitted office. 12

However, the meeting was postponed on 07.02.2024.

e) On 09.03.2024, notice was issued for meeting of the

Selection Committee to be held on 15.03.2024.

f) On 09.03.2024, Mr. Arun Goel, EC, tendered his

resignation, which was accepted w.e.f. 09.03.2024,

thereby resulting in the second vacancy.

g) In view of the second vacancy, a revised note dated

09.03.2024 was issued for the meeting of the Selection

Committee to be held on 14.03.2024 for filling up the two

vacant posts of EC.

It is highlighted by the respondent – Union of India that

the meeting fixed for 15.03.2024 was preponed to 14.03.2024 on

09.03.2024, prior to the listing of the stay applications by

this Court on 15.03.2024.

5. However, it is to be noted that I.A. No. 63879/2024 in Writ

Petition (C) No. 87 of 2024 was filed on 12.03.2024 13 and I.A.

No. 66382/2024 in W.P. (C) 11/2024 was filed on 14.03.202414.

12 See supra note 10.

13 Application filed by Association of Democratic Reforms praying, inter alia, for the stay of implementation of Section 7 of the 2023 Act. 14 Application filed by Naman Sherstra praying, inter alia, for stay of the effect of the 2023 Act. Earlier I.A. No. 4223/2024 in W.P. (C) 13/2024 was filed on 05.01.2024, I.A. No. 30286/2024 in W.P. (C) No. 87 of 2024 was filed on 05.02.2024, albeit stay was not granted by this court.

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6. Mr. Adhir Ranjan Chowdhury, Member of the Selection

Committee15, on 12.03.2024 had requested the Secretary,

Legislative Department, GoI to share details of the

shortlisted names. On 13.03.2024, the Secretary, Legislative

Department, GoI, had sent a list of eligible persons, more

than 200 in number, being considered by the Search Committee

to Mr. Adhir Ranjan Chowdhury. The Search Committee had not

carried out the shortlisting exercise by then.

7. The Search Committee, in its meeting on 13.03.2024, could not

finalise and shortlist the names. In the meeting held on

14.03.2024, the Search Committee recommended a panel of six

names for consideration of the Selection Committee, which were

then circulated and forwarded to the members of the Selection

Committee, including Mr. Adhir Ranjan Chowdhury.

8. On 14.03.2024 the Selection Committee met and recommended the

names of Mr. Gyanesh Kumar and Dr. Sukhbir Singh Sandhu to the

President of India for appointment as ECs. The President of

India had thereupon approved the recommendation on 14.03.2024.

9. We would not, at this stage, go into the depth and details of

the challenge to the vires of Section 7(1) of the 2023 Act.

The judgment in Anoop Baranwal (supra) notices the

appointments of the CEC and ECs made from the 1950s till

2023,16 but this Court intervened in the absence of any

15 Being the leader of the single largest party in opposition in the House of the People.

16 See paragraphs 63-72, Anoop Baranwal (supra).

5 legislation. Article 324(2) postulates the appointment of the

CEC and ECs by the President of India in the absence of any

law made by the Parliament. The judgment in Anoop Baranwal

(supra) 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 is also observed that the Court is neither

invited, nor if invited, would issue a mandamus to the

legislature to make a law. We would also add that the Court

would not ‘invite’ the legislature to make a law in a

particular manner. However, the Constitutional Court within

the framework of the Constitution exercises the power of

judicial review and can invalidate a law when it is violative

of the Fundamental Rights, on application of the principle of

proportionality, etc.

10. It is well-settled position of law that in matters involving

constitutionality of legislations, 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.17 Stay is not ipso

17 Health for Millions v. Union of India, (2014) 14 SCC 496.

6 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 said

principle keeps in mind the presumption regarding

constitutionality of legislation as well as the fact that the

constitutional challenge when made may or may not result in

success. The courts do not, unless eminently necessary to deal

with the crises situation and quell disquiet, keep the

statutory provision in abeyance or direct that the same be not

made operational. However, it would not be appropriate to pen

down all situations as sometimes even gross or egregious

violation of individual Fundamental Rights may on balance of

convenience warrant an interim order. The Courts strike a

delicate balance to step-in in rare and exceptional cases,

being mindful of the immediate need, and the consequences as

to not cause confusion and disarray.

11. The applicant-petitioners urge that this court may by an

interim order direct fresh selection with the CJI as a member

of the Selection Committee. This would be plainly

impermissible, without declaring Section 7(1) as

unconstitutional. Further, we would be enacting or writing a

new law replacing or modifying Section 7(1) of the Act, as

enacted by the Parliament, if such a contention were accepted.

12. Moreover, any interjection or stay by this Court will be

highly inappropriate and improper as it would disturb the 18 th

7 General Election for the Lok Sabha which has been scheduled

and is now fixed to take place from 19.04.2024 till

01.06.2024. Balance of convenience, apart from 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. That apart, even when the matter had

come up earlier and the applications for stay were pressed, we

had refused to grant stay.

13. Given the importance and humongous task undertaken by the

Election Commission of India, 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 India18, is necessary

and desirable.

14. We must, however express our concern on the procedure adopted

for selection of the incumbents to the two vacant posts of

ECs, a significant constitutional post. Such selections should

be made with full details and particulars of the candidates

being circulated to all members of the Selection Committee.

18 (1995) 4 SCC 611.

8 Section 6 of the 2023 Act postulates five prospective

candidates which, prima facie, appears to mean that for two

vacant posts ten prospective candidates should have been

shortlisted. Procedural sanctity of the selection process

requires fair deliberation with examination of 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 18 th General

Elections for the Lok Sabha, to pass any interim order or

direction. As indicated above, this would lead to chaos and

virtual constitutional breakdown. Remand at this stage would

not resolve the matter. It may also be relevant to state that

the petitioners have not commented or questioned the merits of

the persons selected/appointed as Ecs.

15. Further, 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. To borrow from Dr. B.R. Ambedkar, Chairman,

Drafting Committee of the Constituent Assembly of India:

“However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”

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16. 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 are not to be

treated as final and binding, as the matter is sub-judice.

17. Recording the aforesaid, applications seeking stay in I.A. No.

66382/2024 in W.P. (C) 11/2024, I.A. No. 4223/2024 in W.P. (C)

13/2024, I.A. No. 62608/2024 in W.P.(C) No. 14/2024, I.A. No.

68091/2024 in W.P. (C) 87/2024, I.A. No. 30286/2024 in W.P.

(C) 87/2024, I.A. No. 63879 of 2024 in W.P. (C) No. 87 of 2024

and I.A. No. 69713/2024 in W.P. (C) 191/2024 are dismissed.

18. Applications seeking intervention in I.A. No. 64017/2024 in

W.P.(C) 14/2024 and I.A. No. 66282/2024 in W.P. (C) 87/2024

are dismissed.

19. Learned counsel for the intervenor in I.A. No. 71728/2024 in

W.P. (C) 14/2024 prays for and is granted the permission to

withdraw the intervention application. Accordingly, I.A. No.

71728/2024 in W.P. (C) 14/2024 is dismissed as withdrawn.

..................J. (SANJIV KHANNA)

..................J. (DIPANKAR DATTA) NEW DELHI;

MARCH 22, 2024.

** Only the date of the order is corrected.

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