[2024] 3 S.C.R. 881 : 2024 INSC 246
Dr. Jaya Thakur & Ors.
v.
Union of India & Anr.
(Writ Petition (Civil) No. 14 of 2024)
22 March 2024
[Sanjiv Khanna and Dipankar Datta, JJ.]
Issue for Consideration
Matter pertains to applications for stay of selection and appointment
of the Election Commissioners.
Headnotes
Chief Election Commissioner and other Election Commissioners
(Appointment, Conditions of Service, and Term of Office)
Act, 2023 – s. 7(1) – Applications for stay of selection and
appointment of the Election Commissioners in a writ petition
challenging vires of s. 7(1) that substituted the Chief Justice
of India with a Union Cabinet Minister nominated by the Prime
Minister in the Selection Committee for the post of the Chief
Election Commissioner and the ECs:
Held: Grant of stay of selection and appointment of the Election
Commissioners would lead to chaos and virtual constitutional
breakdown – 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 – 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 – Submission that
this Court may by an interim order direct fresh selection with the
CJI as a member of the Selection Committee, would be plainly
impermissible, without declaring s. 7(1) as unconstitutional – If
such submission is accepted, it would be enacting or writing
a new law replacing or modifying s. 7(1), as enacted by the
Parliament – Given the humongous task undertaken by the
Election Commission of India, presence of two more ECs brings
about a balance and check – Concept of plurality in Art. 324,
882 [2024] 3 S.C.R.
Digital Supreme Court Reports
is necessary and desirable – Furthermore, keeping in view the
timelines for the upcoming 18th General Elections for the Lok
Sabha, it is not appropriate to pass any interim order or direction
– Also, EC being a constitutional post, once a constitutional post
holder is selected, they are duty bound to act in accordance
with the letter and spirit of the Constitution – In view thereof,
prayer for grant of stay cannot be accepted and said applications
dismissed. [Paras 10-16]
Case Law Cited
Anoop Baranwal v. Union of India [2023] 9 SCR 1 :
(2023) 6 SCC 161 – explained.
Health for Millions v. Union of India (2014) 14 SCC 496;
T.N. Seshan v. Union of India [1995] Suppl. 2 SCR
106; (1995) 4 SCC 611 – referred to.
List of Acts
Constitution of India; Chief Election Commissioner and other
Election Commissioners (Appointment, Conditions of Service, and
Term of Office) Act, 2023.
List of Keywords
Election Commissioners; Stay of selection and appointment of
the Election Commissioners; Constitutionality of legislations;
Judicial restraint; Interim orders; Suspension of legislation pending
consideration; Violation of Fundamental Rights; CJI as a member
of the Selection Committee for the post of the Chief Election
Commissioner and the ECs; Election Commission of India; Concept
of plurality; 18th General Elections for the Lok Sabha; Balance of
convenience; Prima facie case; Irreparable injury; Stay or injunction;
Interlocutory remedy; Constitutional post; Judicial review; Principle
of proportionality.
Case Arising From
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.14 of 2024
(Under Article 32 of the Constitution of India)
With
W.P.(C) Nos. 13, 11, 87 and 191 of 2024
[2024] 3 S.C.R. 883
Dr. Jaya Thakur & Ors. v. Union of India & Anr.
Appearances for Parties
Gopal Sankarnarayanan, Vikas Singh, Sanjay Parikh, Sr. Advs.,
Prashant Bhushan, Mrs. Cheryl Dsouza, Mrs. Suroor Mander, Ms.
Ria Yadav, Rahul Gupta, Pawan Reley, Gaurav Kumar, Vishal Sinha,
Akshay Lodhi, Shrutanjaya Bharadwaj, Ms. Simran Singh, Sajal
Awashti, Ms. Deepeika Kalia, Keshav Khandelwal, Ms. Vasudha
Singh, Varun Thakur, Ramkaran, Ms. Dolly Deka, Deepak Goel, Mrs.
Tanuj Bagga Sharma, Dr. M.K. Ravi, Denson Joseph, M/s. Varun
Thakur & Associates, Pradeep Kumar Yadav, Vishal Thakre, Gopal
Singh, Aryan P Nanda, Aditya Yadav, Sunil Kumar Srivastava, Tota
Ram, Sanjeev Malhotra, Ms. Ananya Kumar, Ms. Aparna Bhat, Ms.
Karishma Maria, Advs. for the Petitioners.
Tushar Mehta, SG, Aaditya Shankar Dixit, Gaurang Bhushan, Kanu
Agarwal, Devashish Bharukha, Arvind Kumar Sharma, Ankit Agarwal,
Atul Raj, Ashish Shukla, Mohammed Sadique T.A., Kaleeswaram Raj,
Ms. Thulasi K Raj, Ms. Aparna Menon, Ms. Chinnu Maria Antony,
R.P. Gupta, Prashant Padmanabhan, Advs. for the Respondents.
Petitioner-in-person
Judgment / Order of the Supreme Court
Order
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 Service, and Term of Office) Act, 2023.3
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
1 For short, “EC”.
2 For short, “Constitution”.
3 For short, “2023 Act”.
4 [2023] 9 SCR 1 : (2023) 6 SCC 161.
5 For short, “CJI”.
884 [2024] 3 S.C.R.
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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 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.
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 bioprofiles 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.
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.
[2024] 3 S.C.R. 885
Dr. Jaya Thakur & Ors. v. Union of India & Anr.
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 India11 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 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 12.03.202413 and I.A. No. 66382/2024
in W.P. (C) 11/2024 was filed on 14.03.202414.
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
11 For short, “GoI”.
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.
15 Being the leader of the single largest party in opposition in the House of the People.
886 [2024] 3 S.C.R.
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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 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
16 See paragraphs 63-72, Anoop Baranwal (supra).
[2024] 3 S.C.R. 887
Dr. Jaya Thakur & Ors. v. Union of India & Anr.
manifestly violates fundamental rights, the statutory provision cannot
be stultified by granting an interim order.17 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 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 18th 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.
17 Health for Millions v. Union of India, (2014) 14 SCC 496.
888 [2024] 3 S.C.R.
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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. 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 18th 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.”
16. Having regard to the aforesaid position, we are not inclined to accept
the prayer for grant of stay. Accordingly, the applications seeking stay
18 [1995] Suppl. 2 SCR 106 : (1995) 4 SCC 611.
[2024] 3 S.C.R. 889
Dr. Jaya Thakur & Ors. v. Union of India & Anr.
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.
Headnotes prepared by: Nidhi Jain Result of the case:
IAs dismissed.
