Supreme Court Split Verdict on Election Commissioners' Appointment Law

Supreme Court's Divided Opinion on Election Commission Appointments

New Delhi, Sep 23: On Wednesday, the Supreme Court issued a split decision regarding whether to refer petitions questioning the constitutional validity of the law that governs the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) to a Constitution Bench.

Justice Dipankar Datta opposed the idea of referring the matter to a larger Bench, while Justice Satish Chandra Sharma argued that the issue presents a significant constitutional question that has not been previously addressed, advocating for a referral to a Constitution Bench.

Due to their differing views, the two-judge Bench instructed that the case documents be submitted to Chief Justice of India (CJI) Surya Kant to consider the formation of a Constitution Bench to evaluate the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The law establishes a selection committee that includes the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister appointed by the Prime Minister.

Justice Datta expressed that the principles regarding free and fair elections had already been clarified in the Anoop Baranwal case, emphasizing the necessity to protect the Election Commission of India (ECI) from exclusive executive control over appointments.

He noted that the Anoop Baranwal ruling indicated that the selection committee's structure, which included the Chief Justice of India (CJI), was only temporary and intended to function until Parliament enacted a law.

Justice Datta remarked that if the Constitution Bench had intended for the CJI's inclusion in the selection committee to be mandatory, it would have explicitly stated so.

He further pointed out that the Union Cabinet Minister, who is appointed by the Prime Minister, is unlikely to oppose the individual who nominated him.

Justice Datta argued that the Minister could not be expected to contradict his own nominator and risk his position, as the doctrine of collective responsibility typically prevents such opposition.

He reiterated that the Supreme Court had firmly established that free and fair elections are a fundamental aspect of the Constitution and that the ECI should be shielded from exclusive executive influence regarding appointments.

Justice Datta concluded that the remaining task was merely to apply established legal principles to the case's facts, thus rejecting the request for a larger Bench. Conversely, Justice Sharma disagreed, asserting that the question of whether Parliament was justified in omitting a neutral selector from the selection committee is a significant constitutional issue that has not been previously addressed by the Supreme Court.

He noted that while the law established by a prior Constitution Bench under Article 141 is binding, the specific issue at hand had not been conclusively resolved by any prior ruling.

Justice Sharma stated that Article 145, in conjunction with Order 38 of the Supreme Court Rules, does not allow the current two-judge Bench to make a final determination on this matter and supported referring the issue to the CJI for appropriate orders regarding the formation of a Constitution Bench.

Despite their differing opinions, both judges concurred that referring the matter to another three-judge Bench would be unproductive and would only prolong the resolution of the substantive constitutional questions.

Consequently, the two-judge Bench directed that the case documents be submitted to the CJI to assess the need for constituting a Constitution Bench with an appropriate number of judges.

The judges also highlighted the ongoing delays in addressing references before Constitution Benches, noting that some have remained unresolved for years. They expressed concern that such prolonged delays do not reflect well on the institution, describing the excessive wait for resolution as an institutional issue.

The two-judge Bench acknowledged the petitioners' valid concerns regarding the delays in resolving references and urged the CJI to consider the establishment of a permanent five-judge Bench to address constitutional questions.

The petitions challenge the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister in the selection committee for appointing the CEC and ECs.

In March 2023, a Constitution Bench in Anoop Baranwal vs. Union of India had mandated that appointments to the election body be made by the President based on the recommendations of a three-member committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha, and the CJI, as a temporary measure until Parliament enacted a law.

Subsequently, Parliament passed legislation establishing a selection committee that includes the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister appointed by the Prime Minister.

The petitions argue against the exclusion of the CJI, claiming that the current mechanism undermines the independence and transparency of appointments to the ECI.

During previous hearings, the Supreme Court raised concerns about the lack of an independent member in the selection committee and emphasized that the independence of the ECI is crucial for ensuring free and fair elections, which are part of the Constitution's basic structure.

It also questioned the meaningful role of the Leader of Opposition when the government side could dominate the selection panel with a 2:1 majority.

The matter will now be forwarded to the CJI for appropriate orders regarding the formation of a Constitution Bench.