In a notable development, Justice Satish Chandra Sharma of the Supreme Court of India has referred a critical question regarding the appointment process of Election Commissioners to a larger bench. The issue arose in the case of Dr. Jaya Thakur & Ors. v. Union of India & Ors., where the validity of the current panel’s composition, devoid of a neutral member, was challenged.
Constitutional Question on Executive Influence
Justice Sharma, in his separate opinion, supported the Centre’s request to escalate the matter to a five-judge Constitution Bench. He emphasized that the question of Parliament’s powers under Article 324(2) of the Constitution constitutes a substantial legal query unsuitable for resolution by a two-judge panel.
Divergent Opinions on Executive Control
In contrast, Justice Dipankar Datta, delivering a dissenting opinion, rejected the Solicitor General Tushar Mehta’s analogy between the executive’s involvement in appointing Election Commissioners and the judiciary’s Collegium system. Justice Datta argued that the perception of ‘Judges appointing Judges’ is misleading, pointing out that the executive has significant control over judicial appointments. He believed that the precedent set by the Anoop Baranwal judgment already underscored the necessity of insulating the Election Commission from executive dominance, making further referral unnecessary.
Justice Sharma’s Argument for Referral
Justice Sharma, however, interpreted the Solicitor General’s submissions differently. According to him, the Centre did not aim to undermine the Collegium system but instead highlighted the need for the executive’s constitutional independence. He questioned whether the rules under Article 324 could be invalidated simply for lacking an outsider or for being executive-heavy.
Justice Sharma stated that this presents a novel constitutional issue warranting interpretation by a larger bench in compliance with Article 145(3), which mandates that substantial constitutional questions be addressed by a bench of no less than five judges.
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Implications of the Anoop Baranwal Ruling
Justice Sharma further referenced the 2023 ruling in Anoop Baranwal v. Union of India, arguing it provided only an interim solution to a legislative void. He reiterated that the Supreme Court had left it to Parliament to legislate on such matters. The question of whether the exclusion of a neutral selector invalidates the law is, therefore, unprecedented and requires comprehensive examination by a Constitution Bench.
Judicial and Institutional Considerations
Justice Sharma dismissed claims that the government’s request for referral was a tactic to delay proceedings. He stressed that when the constitutionality of a statute faces unaddressed objections, a referral under Article 145(3) becomes obligatory.
Both justices, acknowledging the delays in resolving constitutional references, opted to bypass a three-judge bench to avoid further procedural hold-ups. They directed the Chief Justice of India to arrange for a Constitution Bench to scrutinize the validity of Sections 6, 7, and 8 of the 2023 Act.
