The Supreme Court of India delivered a split decision on Wednesday regarding the central government’s request to refer petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a larger bench. The controversy arises from the 2023 Act’s provision to replace the Chief Justice of India (CJI) with a Cabinet Minister on the selection committee responsible for appointing Election Commissioners.
The Union government had sought to escalate the matter to a larger bench under Article 145(3) of the Constitution. This article permits referring cases involving substantial questions of law to a Constitution Bench. Justices Dipankar Datta and Satish Chandra Sharma reserved their judgment on this request on July 30.
Justice Datta dismissed the government’s plea for referral, expressing a preliminary opinion against the 2023 Act. He emphasized, “We heard these petitions for over five days, and speaking in one voice would have served the voice of institutional cohesion. Unfortunately, we are divided in our opinion. It is a foundational principle of the constitutional scheme that rulers are bound by law and not above it.”
In contrast, Justice Sharma disagreed with Justice Datta’s observations, arguing that the case involved substantial legal questions that warranted consideration by a larger bench. Due to their differing views, the Bench has decided to place the matter before the Chief Justice of India, who will deliberate on whether a Constitution Bench should be constituted to resolve the issue.
Justice Dipankar Datta and Justice Satish Chandra Sharma
Justice Datta stressed the importance not only of the Election Commission of India’s independence but also of its perceived independence. He stated that a minister on the selection panel, nominated by the Prime Minister, might not oppose the Prime Minister due to the doctrine of collective responsibility. “It is far-fetched to expect that a minister who is part of the Cabinet of Ministers would adopt a stand disagreeing with the leader or government. Inclusion of cabinet ministers fails to provide an independent counterweight that a neutral selector would,” Justice Datta remarked.
The 2023 Act establishes a selection panel comprising the Prime Minister, the Leader of Opposition, and a Union Cabinet Minister to appoint the Chief Election Commissioner and other Election Commissioners. The petitions against the law argue that it contravenes the constitutional mandate for an independent Election Commission by omitting the Chief Justice of India from the selection procedure.
This challenge follows the Supreme Court’s 2023 Constitution Bench decision in Anoop Baranwal v. Union of India, which had stipulated a selection committee consisting of the Prime Minister, the Leader of Opposition, and the CJI unless a law was enacted by the parliament. During the proceedings, Solicitor General Tushar Mehta contended that the Supreme Court in Anoop Baranwal had temporarily filled a legislative gap, and the new law should supersede the court’s interim directive.
The Court had previously criticized the longstanding failure of successive Indian governments to legislate a framework ensuring the Election Commission’s independent functioning, noting that the selection panel effectively comprises two members aligned with the government and only one from the opposition.
