The Supreme Court, the Election Commission and the 18th Lok Sabha Elections-I: On the SC’s refusal of a Stay Order in the Election Commissioners’ Case [Guest Post]

[This is a guest post by Hardik Choubey.]

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Introduction

The elections to the 18^th Lok Sabha (which are to be conducted across seven phases) commenced on 19 April, with the final round of polling to be conducted on the 1^st of June. Several high-profile events right before (and during) the elections have raised concerns regarding the conduct of the Supreme Court (SC or ‘the Court’) and the Election Commission (ECI), during this political cycle.

In March 2023, a constitution bench of the SC had modified the process for the appointment of members of the ECI (in Anoop Baranwal v Union of India ), where the court found that the prevailing practice of the executive unilaterally appointing election commissioners was constitutionally impermissible. The court reasoned that as long as the ECI appointments procedure was executive-dominant, the commission’s independence was compromised. After recognizing that the parliament had failed to cure this constitutional infirmity, the court directed that a three-member committee comprising of the PM, the Leader of the Opposition and the Chief Justice of India would advise the President on ECI appointments, until parliament passed an appropriate law.

However, in December, the  Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Office and Terms of Office) Bill, 2023 [For our purposes, ‘the Act’ or EC Appointment Act] was passed by parliament and received the President’s assent. The act provided for an alternate process of appointments to the ECI, one where the three-member committee now consisted of the PM, a Union Cabinet Minister nominated by the PM, and the Leader of the Opposition [Section 7]. On 1 February 2024, this committee [‘Selection Committee’] was constituted and the Home Minister was notified as its member.

Almost immediately, the act was challenged before the SC (in Jaya Thakur v Union of India), where the petitioners claimed that the act contravened the judgment in Anoop Baranwal and sought a stay on the legislation. When a division bench heard the matter on 12 January, it refused to issue an ex-parte interim stay on the legislation. Rather, the judges issued notice to the Union and the ECI and listed the matter for hearing in April. In a strange development, however, EC Arun Goel resigned on 9 March, leaving the ECI as a single-member body right before the largest democratic election in human history. The petitioners filed stay applications in light of this development and the bench agreed to an urgent hearing in mid-March.

In the meantime, the selection committee convened on 15 March and recommended two ECs to fill the vacancies, and the president notified their appointment on the same day. However, at the hearing on 21 March, the bench refused to issue an interim order staying the legislation. The bench reasoned that public interest and balance of convenience did not favour a stay on the legislation when the ECI remained a single-member body right before a general election. Commentators sharply criticized the SC’s refusal to stay the legislation and the lack of engagement with the petitioners’ arguments in the order (for instance, see here), particularly given that the integrity of the electoral process could be questioned if the ECs were perceived as executive appointees.

In the months that have followed these developments, various ex-facie violations of the Model Code of Conduct (MCC) have been alleged against holders of constitutional posts and political parties affiliated with the union executive (see here, here, and here). However, the ECI has on occasion chosen to ‘not comment’ on them. This has led many commentators to question the ECI’s conduct (see here), whilst around 22% of the respondents in a Lokniti-CSDS Survey indicated at least some distrust in the functioning of the ECI (At 25).

In the context of these developments, this series of posts will look to different issues of constitutional importance that relate to the SC and the ECI during the political cycle of elections. This first piece will analyze the doctrinal landscape under which the SC refused to stay the EC Appointments Act. I will argue that the court’s evasion in issuing an interim stay over the legislation was not only doctrinally inconsistent, but it is also indicative of a pattern in the court’s willingness to grant ad-interim relief in constitutional litigation. I seek to show that although the order itself was a textbook case of ‘judicial evasion,’ a view which appreciates its structural and historical context would be more instructive. A second piece, would seek to highlight the threats to electoral fairness that have resulted from union investigative agencies’ (suspect) enforcement patterns during the political cycle.

Incremental Growth of ‘Discretion’ in the Practice of Interim Stay Orders in India:

The challenge to the EC Appointments Act in Jaya Thakur v Union of India was a writ petition filed under Article 32 of the constitution and alleged that Section 7 of the Act was ultra vires as first, it contravened the judgment in Anoop Baranwal and second, that the provision had a direct and potential impact on the conduct of transparent, free and fair elections (At ¶ 1). The thrust of the arguments arguing for a stay on the legislation was that a refusal to do so would jeopardise independent conduct of the ECI in elections and could be a threat to the democratic process.

The 10-page order refusing a stay highlighted the established considerations of balance of convenience, a prima facie case and irreparable injury that courts ought to appreciate while deciding on grant of stay or injunction (At ¶12). However, as Gautam Bhatia observed, the order never described any of these considerations or even undertook their analysis. Instead, whilst denying stay, the order cursorily observed that a grant of stay ‘would lead to uncertainty and confusion, if not chaos’ (At ¶12).

The law on preventive injunctions or stays in India emanated from the principles in private law laid down by the Courts of Chancery in England. Historically, it was well-established that preventive equitable remedy such as a stay or injunction may either stay a proceeding in a court or tribunal or before an arbitrator, or it may forbid an individual, a corporation or the state from doing an act (such as the enforcement of a legislation) [At 1]. In England, since these remedies were granted under the equitable jurisdiction of courts, they could not be asked as a matter of right (legal remedies were a matter of ‘right’ and were granted only after trial on merits), but were purely discretionary. Another discretionary jurisdiction in England was the issue of prerogative writs by courts in the nature of habeas corpus, mandamus, certiorari, prohibition and quo warranto, which were originally issued by courts in exercise of the prerogative jurisdiction of the monarch. However, at the time of deliberation over Article 32 of the Constitution, Dr. Ambedkar highlighted that the guarantees under that article fall into two categories: prerogative writs and ‘writs in action’. He explained that the prerogative writs were essentially that ‘they can be sought for by an aggrieved party without bringing any proceedings or suit’ and that the object of these writs ‘was really to… grant interim relief.’

Seervai argued that Articles 32 and 226 deliberately conferred the power to issue writs (as opposed to merely orders) on the SC and HCs to indicate that insofar as the writs were to be issued for enforcement of FRs, the exercise of such power was not to be ‘discretionary’  [At 818-820]. This view could be seen in the early practice of the SC and HCs in Independent India, where stay orders or injunctions over land reform and other welfare legislation were granted at a (reportedly) high frequency. State of Bihar v Sonabati Kumari (1960) is emblematic of this early practice, where the subordinate judge had temporarily injuncted (using Order XXXIX of the Civil Procedure Code) the state from notifying against the plaintiff under the Bihar Land Reforms Act, 1950. The HC upheld such a stay and the SC penalised the state for contravening the injunction. In Narayan Row v Ishwarlal (1965), the SC further expanded its jurisdiction to grant stays or injunctive relief by holding that writ petitions before HCs under Article 226 were ‘nothing but civil proceedings’ within the meaning of Article 133.

However, as arguments regarding the conflation of the ‘original jurisdiction’ of the SC with its ‘extraordinary original jurisdiction’ under Article 32 started holding sway, the SC in Tilokchand Motilal v HB Munshi (1970) held that it would treat the remedy by way of writs under Article 32 as ‘discretionary’ and not as a matter of right (Bachawat, J. and Mitter J.’s Opinions for the majority). As V.S Deshpande showed in a study conducted in the 1970s, stay orders were granted in about half of the total number of cases in which stay was prayed for (At 150). I submit that this trend led to a ‘course-correction’ by the SC, where successive orders were passed admonishing the practice of stays on laws, executive proceedings or private actions. New tests for deciding on interim stays were laid down by the SC in this period.

In Siliguri Municipality & Ors. v Amalendu Das (1984), the SC for one of the first times, overtly criticized the practice of HCs to ‘grant interlocutory orders for the mere asking’ (and emphasized the consideration of ‘public interest’ in granting stays upon the operation of legislation or recovery by tax authorities when legislation has been challenged (¶2-5)). It must be noted that this consideration of ‘public interest’ raises interesting questions of its own, particularly in constitutional law challenges to legislation or executive action, as what constitutes ‘public interest’ is exceedingly hard to predict for any petitioner who alleges a violation of their fundamental or legal rights. The existence of this consideration builds in a troubling level of ‘discretion’ into the tests for grant of interim relief that traditional tests did not account for. To take an analogous example, in Société de développement de la Baie James vs. Chef Robert Kanatewat [Quoted at ¶50], the Quebec Court of Appeals dismissed an application for interlocutory injunction which would have required the state to halt a hydroelectric project by (vaguely) balancing the interests of the indigenous population affected and ‘the growing energy needs of Quebec as a whole.’ Whilst the other considerations of prima facie case, irreparable injury or balance of convenience are themselves not highly discretion-restrictive, they operate within the confines of the facts and circumstances presented to the court, this is not necessarily the case with the consideration of ‘public interest’, where vague notions can influence whether an alleged constitutional violation is preventively inhibited whilst hearings on merit are underway.

In Assistant Collector v. Dunlop (1984), the SC again came down heavily against the practice of HCs staying legislations and executive actions and went even further to hold that (At ¶7): ‘The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest. [Emphasis Mine]’

In Bhavesh D Parikh v. Union of India (2005), in what could arguably be conceived as obiter dicta, the court expanded the benefit of the presumption of constitutionality for economic or fiscal legislations at the interim remedy stage. The bench observed:

When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. [Emphasis Mine]

The pre-existing ‘test’ on grant of ‘interim stays’ was essentially borrowed from private law decisions such as American Cyanamid (1975), where private parties could be granted damages as a remedy if their legal rights were violated whilst the dispute was heard on merits. Although such an approach might be workable in private law disputes, in fundamental rights challenges, such an approach is mostly not possible as damages for human rights violations are hardly easily quantifiable, if they are quantifiable at all (see Kent Roach’s work on human rights violations and intermediate remedies). The SC’s ‘course-correction’ judgments essentially tilt the balance of the ‘private law standards’ on grant of interim stays heavily in the favour of the state action. It is hardly ever possible for a petitioner to meet the standards of establishing ‘glaring unconstitutionality’ or ‘eliminating the slightest likelihood of prejudice to the public interest’ at an interim stage without making their case on merits. In Jaya Thakur v Union of India, the hearing on stay applications lasted merely over an hour.  They also inculcate a high level of discretion with judges in granting what were initially envisioned as constitutionally mandated interim remedies. Recent stay orders in the Farm Laws Challenge, the Challenge to the IT (Amendment Act) FCU, etc. have not even adhered to mentioning the standards over which the imperative to stay statutory law was analyzed (see here, here and here).

The EC Appointments Act Challenge and the (Lack Of) a Stay Order

The absence of a discernable standard for grant of interim stays or injunctions cuts both ways, however, where the court in Jaya Thakur v Union of India merely applied, what must have appeared to the bench to be a justifiable consideration of ‘public interest’ in there being a three-member ECI instead of a single-member body right before a general election, which would not contravene the SC’s prevailing doctrine (if one could call a fusion of deference to the executive and judicial evasion a doctrine) on staying legislation.

Even still, the order is still perplexing on one important issue. During the hearing on stay applications, a counsel for the petitioners had suggested that the Selection Committee prescribed in Anoop Baranwal could meet and select the two ECs in the interim till the case was decided on merits. The bench, in its order noted that ‘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.’

I submit that this reasoning, to put it bluntly, is incorrect. If the bench had agreed to stay the legislation, the effect of the order under Article 32 would have been to put the legislation in a ‘suspended’ state, and any action (such as the one suggested by counsel) would operate until a declaratory judgment was not given (See here and here for the nature of interim orders for stay or injunction). Preventive relief in the form of orders for stay or injunction are not declaratory, but interlocutory (See here). I submit that the refusal to engage with the counsel’s suggestion could be suggestive of an approach where any indications of infirmity with a legislation at a preliminary stage, particularly one regulating a core constitutional function, by staying it, would be seen as prejudicing the state and thus impinging upon the presumption of constitutionality. It may also show an institutional evasion of assessing options for intermediate remedies when the risks of harm are between the parties are not commensurate, and there is no common scale to measure the competing claims of irreparable harm.

Conclusion

The Supreme Court’s refusal to grant an intermediate remedy to the petitioners in Jaya Thakur v Union of India has led to the appointment of two career bureaucrats to the institution which is most directly responsible for the conduct of fair elections, via an executive dominated process. The court’s order gave (self-) assurances regarding the appointees: that once these persons have been appointed, they would be expected to act in a manner consistent with the constitution. Though the court quoted Dr. Ambedkar on this point, the quote was not (as the bench appears to use it), a hopeful proclamation regarding the conduct of all future constitutional post-holders. Rather, in the context of his speech, it is better construed as a call to all who want the constitution to work, to take steps in that direction, and ensure its health.

In the aftermath of the court’s order, the election cycle has developed in earnest. The consequences of the court’s order in Jaya Thakur will have to be judged on the conduct of the ECI in the upcoming months. In the next post, I will analyze questions relating to the fairness in the general election in the context of allegedly suspect enforcement by union investigative agencies and the scope of possible relief that the SC and the ECI could provide.