Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 – Applications seeking stay are dismissed -the observations in this order are tentative and are not to be treated as final and binding, as the matter is sub-judice – The judgment in Anoop Baranwal, 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- Any interjection or stay will be highly inappropriate and improper as it would disturb the 18th 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 – Given the importance and humongous task undertaken by the Election Commission of India, presence of two more ECs brings about a balance and check.
Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 ; Section 6 -SC expressed 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. (Para 14)
Interim Orders/Stay – 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. 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 – 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. (Para 10-12)