Supreme Court Referral of Petitions on Election Commission Appointments

A two-judge bench of the Supreme Court referred petitions challenging the 2023 law on the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) to the Chief Justice of India (CJI). This law excludes the CJI from the appointment process. Justices Dipankar Datta and Satish Chandra Sharma were divided on whether to refer the matter to a larger bench but agreed to place it before the CJI for potential constitution of a Constitution Bench.

Key Points of the Joint Order

• Justices noted delays in deciding Constitutional references, citing the Anoop Baranwal case, which took eight years for a final judgment.
• They suggested the formation of a permanent five-judge bench for Constitutional cases to avoid institutional embarrassment due to delays.

The 'Anoop Baranwal' Case

The challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, originated from the Supreme Court's judgment in Anoop Baranwal v. Union of India (March 2023). The 2023 law replaced the CJI on the selection committee with a Union Cabinet minister nominated by the Prime Minister, raising questions about executive influence.

Discussion on the 2023 Law

• Justice Datta's View:
  • Believed the petitions could be resolved by the current bench.
  • Emphasized that the principle of appointments not being under exclusive executive control was settled in Anoop Baranwal.
  • Expressed concerns about the selection committee's structure, noting that it might not appear independent.
  • Rejected the comparison between the EC selection process and the collegium system for judicial appointments.
• Justice Sharma's View:
  • Disagreed with Datta and advocated for a Constitution Bench referral.
  • Argued that the Supreme Court has not yet pronounced on the constitutional validity of the 2023 Act.
  • Highlighted the newness of the question of replacing the CJI with a Cabinet minister.

Constitution Bench Context

According to Article 145(3), a Constitution Bench of five or more judges decides substantial questions of law involving the Constitution's interpretation. These benches are convened for questions that have not been authoritatively settled before, offering greater weight than ordinary judgments.

Examples of Split Verdicts

• October 2022: Split verdict on the Karnataka hijab case led to a referral to a larger bench.
• Earlier in the year: Another split verdict on Section 17A of the Prevention of Corruption Act led to a larger bench referral.