SC delivers split verdict on appointment law of Election Commissioners

The Supreme Court on Wednesday delivered a split verdict on whether challenges to the 2023 law governing the appointment of the chief election commissioner and election commissioners should be referred to a larger Constitution bench. The two judges differed on the need for such a reference but agreed that the matter should be placed before CJI for constituting a larger bench.

A bench of justices Dipankar Datta and Satish Chandra Sharma differed on the Centre's plea that the constitutional challenge be referred to a larger bench under Article 145(3) of the Constitution.

Justice Datta held that a reference was not warranted while justice Sharma concluded that the challenge raised a substantial question of constitutional interpretation, requiring authoritative determination by a Constitution bench. Justice Sharma opined that the matter deserved referral to a five-judge bench.


In view of the difference of opinion, the judges directed that the papers be placed before CJI Surya Kant to consider the desirability of constituting a Constitution bench of appropriate strength to decide the validity of Section 7 and other provisions of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The judges, however, agreed that sending the matter first to another bench merely to decide whether a Constitution bench should be constituted would cause further delay. The judgement also raised a larger institutional concern over SC's handling of constitutional questions. Responding to the petitioners' apprehension that references to larger benches often remain pending for years, the bench observed that the concern appeared justified.

"Self-introspection indeed is required," the apex court said, requesting the CJI to consider constituting a permanent five-judge bench for deciding constitutional cases.

The SC noted that substantial questions involving the interpretation of the Constitution are required under Article 145(3) to be heard by a bench of at least five judges, but the constitution of such benches on a case-by-case basis can result in delays.

Justice Datta held that constitutional principles governing the independence of ECI had already been settled by the Constitution bench judgement in Anoop Baranwal vs Union of India (March 2023).

'Executive has a 2:1 advantage... LoP presence ornamental'

"Free and fair elections depend on a truly independent ECI. It is not enough for ECI to be independent; it must appear to be independent," Justice Datta observed in his judgement.

He questioned the composition of the selection committee under the 2023 Act, which comprises the Prime Minister, a Union Cabinet minister nominated by the PM and the Leader of the Opposition in the Lok Sabha. "Inclusion of Cabinet ministers fails to provide an independent counterweight that a neutral selector would. It becomes largely ornamental," he observed. Justice Datta noted that a minister nominated by the PM could not realistically be expected to disagree with the PM, given the doctrine of collective ministerial responsibility. This, he said, effectively gave the executive a 2:1 advantage on the selection committee and rendered the LoP's presence "largely ornamental." He said the arrangement raised concerns about the "perception test" of independence that courts have long applied to electoral institutions.

Justice Datta also rejected the argument that the Constitution bench's decision in Anoop Baranwal case had ceased to have relevance merely because Parliament subsequently enacted a law governing appointments. He distinguished between the interim mechanism prescribed by the court and the underlying constitutional principle requiring an appointment process that protects the ECI's independence.

Constitutional interpretation not settled by earlier Verdict

Justice Sharma, on the other hand, took a different view on the question of reference. He held that the challenge raised a substantial and important question of constitutional interpretation that had not been conclusively settled by any earlier judgement. The central issue, according to him, was whether Parliament could exclude a neutral constitutional functionary from the selection committee and replace the CJI with a Union Cabinet minister nominated by the PM. He held that Article 145(3), read with the Supreme Court rules, contemplated adjudication of such a substantial constitutional question by a bench of at least five judges.