Election Commissioner Appointments | Supreme Court refuses to stay the 2023 Act before 2024 General Elections

Challenges to the Appointment of Election Commissioners Act, 2023

Judges: Sanjiv Khanna J, Dipankar Datta J

Today, a Division Bench of the Supreme Court comprising Justices Sanjiv Khanna and Dipankar Datta refused to stay the Chief Election Commissioner and Other Election Commissioner Act, 2023 (the Act) taking into account the upcoming General Elections. 

Section 6 of the Act stipulates that a “Search Committee” must create a list of eligible candidates to be appointed to the Election Commission of India (ECI). A “Selection Committee” will be set up under Section 7 of the Act, comprising the Prime Minister, a Union Cabinet Minister and the Leader of the Opposition. This Committee will recommend members to be appointed as Election Commissioners based on the list of candidates provided by the Search Committee. 

The Bench patiently heard several counsel on the petitioners’ side, including Advocate Prashant Bhushan and Senior Advocates Gopal Sankaranarayanan, Vikas Singh, Kaleeswaram Raj and Sanjay Parikh. Their main contention was that the Act stood in contrast to the Constitution Bench decision in Anoop Baranwal v Union of India (2023). 

Solicitor General Tushar Mehta appeared for the Union. The Bench questioned him about the procedural inconsistencies in the recent appointments of Gyanesh Kumar and Sukhbir Singh Sandhu as Commissioners to the ECI. 

The Act contradicts the spirit of Anoop Baranwal

In Anoop Baranwal, a five-judge Bench led by Justice K.M. Joseph had directed that a three-member Committee comprising the Prime Minister (PM), the Leader of the Opposition (LoP) and the Chief Justice of India (CJI) would be formed to nominate members to the ECI. This was a stop-gap arrangement, till Parliament came up with a law for the appointment of Election Commissioners under Article 324(2)

Bhushan, representing the Association for Democratic Reforms asserted that the purpose of the judgement was to ensure that the process of appointing ECI members remained independent from executive interference. The basis for creating a Selection Committee comprising the CJI was to ensure that the selection “cannot be left in the hands of the Executive.” Unbridled executive power over appointments, Bhushan urged, “would pose a serious threat to free and fair elections.” 

Sankaranarayanan also echoed this view. He added that the appointment processes to institutions such as the judiciary, independent investigative bodies like the CBI and ED and the ECI were crucial. Anoop Baranwal, he said, provided the basis for an impartial appointment process of members to the ECI. 

Singh contended that the Act reinstated the imbalance of power that existed before the judgement of the Court was delivered. Before the 2023 judgement, the Union legally made unilateral decisions on ECI appointments. 

The Bench appeared unconvinced. “Obviously, the intent of the judgement was to push Parliament to make the law,” Justice Khanna stated. He pointed out that it was not for the Court to decide what kind of law Parliament makes. While there was no doubt the constitutionality of the Act could be questioned, it could not be stayed without hearing the case on merits. 

Justice Datta asked Bhushan what his contentions against the Act would be had Anoop Baranwal not existed. “Exactly the same, My Lord,” Bhushan responded. He claimed that the system of appointments that existed before Anoop Baranwal also compromised the independence of the ECI. That was the reason for the decision in the first place. 

New appointments, procedural inconsistencies

Bhushan took the Court through the series of events leading up to the hearing today. 

He highlighted that the Selection Committee comprising the PM, Union Cabinet Minister and the LoP were meant to meet on 15 March 2024. However, this date got changed to 14 March 2024 on 9 March 2024. He also informed the Bench that on 12 March, the LoP, Adhir Ranjan asked for a list of shortlisted candidates and was handed a list of 200 candidates on 13 March when the Selection Committee first met. Since no selection happened that day, the Committee met again the next day. 

On 14 March, a shortlist of six candidates was given to the Selection Committee of which two candidates, Gyanesh Kumar and Sukhbir Singh Sandhu, were selected. Bhushan informed the Bench that Ranjan had stated that he was given the list of six candidates 10 minutes before the meeting. This, Bhushan claimed, was unacceptable and was done purely to render the stay applications filed by the petitioners “infructuous.” 

The Bench acknowledged these procedural inconsistencies. They questioned the Union why the LoP was not given more time to consider the candidates. Recalling that when there was a single vacancy, the shortlist had consisted of five names as prescribed by law, Justice Datta asked “For two, you send only six. Why not 10?”. He also asked why the date of the meeting for the selection of two candidates was moved to an earlier date than the previously set date to select only one candidate.

Mehta responded that the process of the Selection Committee had already commenced in February 2024 and that there was no inconsistency here. The petitioners, Mehta argued, had changed the “tone and tenor” of the whole process by claiming that the selection process was undertaken to make their applications infructuous. 

“This could have easily been avoided, Mr. Mehta,” Justice Khanna remarked. He pointed out that especially given that the case was pending in Court, some more time could have been given to the Committee to announce their selections. “For any appointment of this nature, the views of every member of the Selection Committee must be taken into account and their views are important,” the Bench said. 

Maintaining the “balance of convenience”

While the Bench acknowledged the petitioner’s concerns on procedure, they pointed out that the balance of convenience did not favour staying the Act at this stage given the upcoming elections. Justice Khanna asked: With the elections around the corner, Justice Khanna asked the petitioners if they preferred “a one-member commission or a three member-commission?” 

Bhushan offered a solution. He suggested that over the next few days, a Search Committee as recommended in Anoop Baranwal should convene and select two new members. In the meantime, the newly appointed members could continue working in office. The Bench did not pay heed to this recommendation. 

The Court decided that they would hear the challenges to the Act on merits, but would not stay it at this stage. The case is expected to be heard next in August 2024.