Supreme Court split on CEC, EC appointment law; CJI to consider Constitution Bench

The Supreme Court on Wednesday delivered a split verdict on whether petitions challenging the constitutional validity of the law governing the appointment of the Chief Election Commissioner CEC and Election Commissioners ECs should be referred to a Constitution BenchWhile Justice Dipankar Datta rejected the plea for reference to a larger Bench Justice Satish Chandra Sharma held that the challenge raises a substantial question of constitutional interpretation that has not been settled by any earlier judgment and favoured reference to a Constitution Bench news agency IANS reportedIn view of the difference of opinion the twojudge Bench directed that the papers be placed before Chief Justice of India CJI Surya Kant for considering the desirability of constituting a Constitution Bench of an appropriate strength to decide the constitutional validity of the Chief Election Commissioner and other Election Commissioners Appointment Conditions of Service and Term of Office Act 2023Under the statute the selection committee comprises the Prime Minister the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime MinisterWhat did Justice Datta sayIn his opinion Justice Datta held that the Constitution Bench judgment in the Anoop Baranwal case had already settled the constitutional principles concerning free and fair elections and the need to insulate the Election Commission of India ECI from exclusive executive control in matters relating to appointmentsHe said the Anoop Baranwal judgment made it clear that the arrangement prescribing a selection committee comprising the Prime Minister the Leader of Opposition and the CJI was transient in nature and was to operate until Parliament enacted a lawIf the Constitution Bench intended for the inclusion of the Chief Justice of India CJI in the selection committee to be binding it would have said so Justice Datta observedJustice Datta further observed that the Union Cabinet Minister nominated by the Prime Minister as the third member of the selection committee could not reasonably be expected to oppose the person who nominated himHe opined that the Minister nominated by the Prime Minister cannot be expected to defy his own nominator and risk his continuation and that the doctrine of collective responsibility would ordinarily preclude the Minister from opposing the Prime MinisterAccording to Justice Datta the Supreme Court had already laid down in unmistakable terms that free and fair elections are a basic feature of the Constitution and that the ECI should be insulated from exclusive executive control in relation to appointmentsWhat remains is no more than the application of the settled principles of law to the facts of the case he held rejecting the prayer for reference to a larger BenchWhy did Justice Sharma favour a Constitution BenchJustice Sharma disagreed and held that the question of whether Parliament was justified in excluding a neutral selector from the selection committee was an important constitutional issue arising for the first time before the Supreme CourtHe observed that while the law declared by an earlier Constitution Bench under Article 141 was binding the specific question arising in the present challenge had not been conclusively dealt with by any precedentJustice Sharma held that Article 145 read with Order 38 of the Supreme Court Rules did not permit the present twojudge Bench to finally decide such a question He therefore favoured placing the matter before the CJI for appropriate orders regarding the constitution of a Constitution BenchDespite their difference of opinion both judges agreed that referring the matter concerning the reference question to another threejudge Bench would serve little purpose and result in further delay in deciding the substantive constitutional issuesThe twojudge Bench accordingly directed that the papers be placed before the CJI to consider the desirability of constituting a Constitution Bench of such number of judges as may be appropriateJudges flag delay in Constitution Bench referencesThe judges also flagged the prolonged pendency of references before Constitution Benches observing that some such references remain unresolved for yearsThe pendency of reference for far too longhellip does not reflect well on the institution the order observed describing the inordinate delay in resolving such references as a matter of institutional concernThe twojudge Bench recorded that the petitioners were justified in expressing concern over the delay in deciding references and requested the CJI to explore the necessity of constituting a permanent fivejudge Bench to decide constitutional questionsWhat is the dispute over the CEC EC appointment lawThe petitions challenge the Chief Election Commissioner and the other Election Commissioners Appointment Conditions of Service and Term of Office Act 2023 which replaced the CJI with a Union Cabinet Minister nominated by the Prime Minister in the selection committee for appointing the CEC and ECsIn March 2023 a Constitution Bench in Anoop Baranwal vs Union of India had directed that appointments to the poll body be made by the President on the recommendation of a threemember committee comprising the Prime Minister the Leader of Opposition in the Lok Sabha and the CJI as an interim arrangement until Parliament enacted a lawParliament subsequently enacted legislation under which the selection committee comprises the Prime Minister the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime MinisterThe petitions have challenged the exclusion of the CJI and contended that the present mechanism undermines the independence and transparency of appointments to the ECIDuring earlier hearings the Supreme Court had questioned the absence of an independent member in the selection committee and observed that the independence of the ECI was integral to ensuring free and fair elections which form part of the basic structure of the ConstitutionIt had also questioned whether the inclusion of the Leader of Opposition had any meaningful role when the government side could command a 21 majority on the selection panelThe matter will now be placed before the CJI for appropriate orders on the constitution of a Constitution BenchWith IANS inputs