Supreme Court Delivers Split Verdict on Election Commissioner Appointment Law

A two-judge bench of the Supreme Court Wednesday delivered a split verdict on whether petitions challenging the 2023 law on the appointment of the Chief Election Commissioner and other Election Commissioners should be referred to a five-judge Constitution bench. The order came on petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which provides for their selection by the three-member panel. While Justice Dipankar Datta rejected the prayer, Justice S C Sharma said it deserved referral to a five-judge bench. “In view of the difference of opinion between the two of us, ideally, a reference to a three-judge bench is called for. However, having regard to the question on which such difference has arisen, that is whether the petitions and the application should be heard by a Constitution Bench of five judges, a decision by a three-judge bench to resolve which of the two opinions is correct, would be of little worth and only delay adjudication of the significant issues that these writ petitions raise,” the bench said. “Thus, we direct that the papers be placed before the Hon’ble Chief Justice of India for considering the desirability of constituting a Constitution Bench, of such number of judges, to decide the question of vires of Section 7 and the other provisions of the 2023 Act,” it added. Article 324 of the Constitution lays down that the appointment of the Chief Election Commissioner and other Election Commissioners shall, “subject to the provisions of any law made in that behalf by Parliament, be made by the President.” Earlier hearings Hearing petitions in March 2023, which said no such law had been made and sought a Collegium-style appointment system for appointment of CEC and ECs, a five-judge Constitution Bench of the court had, in the Anoop Baranwal vs Union of India case, ruled that until such time the law is made, they shall be appointed on the advice of a committee comprising the Prime Minister and the Leader of Opposition in Lok Sabha The bench also said that if there is no such leader, the leader of the largest party in the Opposition in Lok Sabha and the Chief Justice of India will do so. Parliament then brought in the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which, however, left out the CJI. NGO Association for Democratic Reforms and Madhya Pradesh Congress leader Jaya Thakur challenged this before the SC. Hearing the petitions, the bench of Justices Datta and Sharma asked the Centre how the decision by a committee comprising the Prime Minister, the Leader of Opposition and a Cabinet Minister can be said to be independent when it is decided by a 2:1 majority, and the Cabinet Minister is a PM pick. Defending the law, the Centre, represented by Solicitor General Tushar Mehta, had then said it would be wrong to assume that the PM and the minister would “not act in the interest of democracy” because they have a “numerical majority” in the selection procedure. Mehta submitted that the office of the PM has a “sanctity attached” to it, and that doubting the selection committee’s decision would undermine the constitutional trust reposed in elected institutions. He said that if the PM was not to be trusted to discharge his constitutional duties, should he be asked to consult “outsiders, including a former judge of this Hon’ble Court,” while selecting his Cabinet members too. Mehta urged the court to refer the matter to a five-judge Constitution Bench, saying it involves questions of constitutional importance. “This needs examination by a larger bench: why independence is being talked about of only one office, and why only one organ can be trusted, and others cannot be,” he said.