12 Jan 2024 5:42 AM GMT
The Supreme Court on Friday (January 12) agreed to hear Congress leader Jaya Thakur's plea challenging the constitutionality of Sections 7 and 8 of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. However, the top court refused to issue an immediate stay on the legislation.
A bench of Justices Sanjiv Khanna and Dipankar Datta was hearing a writ petition filed by Thakur under Article 32 of the Constitution questioning the constitutionality of the election commissioners' act, which was signed into law last December by President Droupadi Murmu following the parliament's winter session. Through this legislative move, the Chief Justice of India was dropped from a committee to appoint the chief election commissioner (CEC) and other election commissioners, which has now prompted this constitutional challenge.
During the hearing today, Senior Advocate Vikas Singh, appearing for Thakur, argued that this Act was a violation of the doctrine of the separation of powers, which formed a basic structure of our Constitution. Right at the outset, Justice Khanna asked the senior counsel whether an advanced copy had been served on the respondent union government and election commission.
In response, Singh said, "There is no system in the Supreme Court to serve advanced copy. That's only in the high court."
"But serve an advanced copy please," Justice Khanna instructed him.
"I will," Singh agreed, before urging the court to decide on an interim prayer for a stay on the new law.
The bench, however, categorically refused, with Justice Khanna telling the lawyer, "There will not be a stay. Please, we can't stay a statute like this."
"We will issue notice though," the judge added. At the senior counsel's request for a 'short date', the bench agreed to post it to April for hearing. It pronounced -
Background
Thakur, the general secretary of the Madhya Pradesh Mahila Congress Committee, has argued against, among other things, the contentious removal of the chief justice, alleging that this is ultra vires Articles 14, 21, 50 and 324 of the Constitution inasmuch as it violates the principles of free and fair election. She has also relied on the Supreme Court's March ruling in Anoop Baranwal mandating the inclusion of the chief justice in the appointment process till the Parliament enacted a law regulating it in view of the need for an independent and unbiased selection panel.
The election commissioners' act, which received approval from the Lok Sabha on December 21 and the Rajya Sabha on December 12, replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, introducing key changes to the appointment, salary, and removal procedures for top election officials. The most notable feature of the new legislation is that the President would appoint the election commissioners on the strength of a selection committee's recommendation, prepared after considering a list of candidates proposed by a search committee headed by the union law minister. According to Section 7, the selection committee would consist of the prime minister, a union cabinet minister, and the leader of the opposition or the leader of the largest opposition party in the Lok Sabha. Section 8 empowers the panel to regulate its own procedure in a transparent manner, and even consider persons other than those suggested by the search committee.
This legislative development came after a constitution bench led by Justice (Retd) KM Joseph directed election commissioners to be appointed by the President of India on the advice of a committee consisting of the prime minister, the leader of the opposition or the largest opposition party, and the chief justice. The new law excluding the chief justice from the selection committee triggered a barrage of criticism from the opposition for alleged executive overreach and encroachment on the election commission's autonomy. Those critical of the bill also argued that this diminished the election commission's institutional legitimacy, and was contrary to the constitution bench's judgment.
However, during the parliamentary debate this session, Law Minister Arjun Ram Meghwal defended the move, saying that the appointment of election commissioners - which was earlier not governed by any specific provision under law - was an important responsibility of the executive. The minister said, "This is an important executive function. The architects of our Constitution enshrined the separation of powers in Article 50. The executive should do the executive's job, the judiciary should do the judiciary's job, and the legislature should do the legislature's job."
The Congress leader, in her petition, has raised apprehensions that the impugned sections would "destroy the democracy in our country" and nullify the Supreme Court's judgments on institutional independence, fairness and transparency in appointment processes, free and fair elections, and the rule of law. The petition states -
In related news, a public interest litigation (PIL) petition has been filed in the Supreme Court last week asking for the setting aside of a December 28 gazette notification for the appointment of chief election commissioner and other election commissioners in terms of the election commissioners' act. The petitioners, regular practising advocates, have argued for the implementation of an independent and transparent selection system, constituting a neutral committee for appointing the chief election commissioners and other election commissioners, and the inclusion of the Chief Justice of India in the selection panel.
Case Details
Dr Jaya Thakur & Ors. v. Union of India & Anr. | Writ Petition (Civil) No. 14 of 2024