Supreme Court refers CEC appointment law to Constitution bench after 1:1 split; Justice Datta flags concerns over executive dominance

The Supreme Court on Wednesday referred the constitutional challenge to the law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) to a Constitution bench, after a two-judge bench delivered a 1:1 split verdict on whether the issue should itself be decided by a larger bench.

Justices Dipankar Datta and Satish Chandra Sharma differed on the question of reference, but agreed that the matter should be placed before Chief Justice of India Surya Kant for the constitution of a Constitution Bench. The judges held that sending the disagreement to another three-judge bench would only result in further delay.

The immediate consequence is that the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, remains in operation. The Supreme Court has neither struck down nor upheld the controversial appointment mechanism.

The substantive constitutional challenge will now be considered by the larger bench.

At the centre of the challenge is Section 7 of the 2023 Act, which provides for a three-member Selection Committee comprising the Prime Minister as chairperson, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.

The petitions also challenge Sections 6 and 8(2). Section 6 provides for a Search Committee headed by the Law Minister, while Section 8(2) allows the Selection Committee to consider a person outside the panel prepared by the Search Committee.

The case has its roots in the Supreme Court's 2023 Constitution bench judgment in Anoop Baranwal v. Union of India. In that case, the Court had examined the prolonged absence of parliamentary legislation governing appointments under Article 324(2).

The Court prescribed an interim arrangement under which the Prime Minister, Leader of Opposition and Chief Justice of India would form the selection committee until Parliament enacted a law.

The Parliament subsequently enacted the 2023 law, replacing the CJI with a Union Cabinet Minister nominated by the Prime Minister. Whether that change is constitutionally permissible is now the central question before the Constitution Bench.

Datta: ECI must be independent and appear independent

Justice Datta rejected the Union's plea that the case necessarily required a Constitution Bench, holding that the basic constitutional principles governing the independence of the ECI were already settled.

However, his opinion contains significant prima facie observations on the appointment mechanism, even though he made clear that he was not finally deciding the validity of the Act.

Justice Datta stressed the connection between an independent Election Commission and free and fair elections. He observed that “it is not enough for the ECI to be independent; it must also appear to be independent.”

He questioned whether the Cabinet Minister nominated by the PM could provide an effective independent counterweight within the committee.

The judgment observed that the Minister, being part of the Council of Ministers and bound by collective responsibility, could not ordinarily be expected to oppose the Prime Minister who nominated him. In such circumstances, Justice Datta said, the Cabinet Minister would not provide the independent counterweight that a neutral selector could provide.

Justice Datta further observed that the Leader of Opposition's presence could become “largely ornamental” if the two executive members acted together.

He also questioned whether the statutory mechanism was as independent as the interim arrangement prescribed in Anoop Baranwal, while emphasising that these questions would ultimately have to be decided on the merits.

Sharma: fresh constitutional question requires five judges

Justice Sharma took the opposite position and held that the challenge raises a substantial question of law as to the interpretation of the Constitution, attracting Article 145(3).

His principal reasoning was that there is no authoritative Supreme Court judgment which has examined the constitutional validity of the 2023 Act.

Justice Sharma said that Anoop Baranwal had dealt with the constitutional vacuum created by the absence of legislation and had provided an interim mechanism.

Whether Parliament could subsequently enact a law without including a neutral selector, however, had not been decided.

“Whether or not Parliament was justified in not including a neutral selector in the selection committee is an important question arising for the first time,” Justice Sharma said.

He therefore held that the issue could not be finally decided by the present two-judge Bench and that the petitions should be placed before a Constitution Bench to determine the validity of Sections 7, 6 and 8 of the Act.

What the Constitution Bench will decide

The larger bench will have to examine the balance between Parliament's power under Article 324(2) to legislate on appointments and the constitutional requirement of an independent Election Commission.

A key issue will be the legal significance of Anoop Baranwal.

Justice Datta viewed the CJI-inclusive committee as a temporary Article 142 arrangement which ceased once Parliament legislated. At the same time, he held that the underlying principle that the ECI must be independent and insulated from exclusive executive control remains binding.

Justice Sharma, on the other hand, considered the validity of the new legislative mechanism to be a constitutional question that had never been authoritatively decided.

Thus, the Constitution Bench will have to decide whether the 2023 Act merely exercises Parliament's legislative power under Article 324(2), or whether the composition of the Selection Committee crosses the constitutional limits imposed by the requirement of an independent ECI and free and fair elections.

Court flags delay in constitutional references

The judges also raised a broader institutional concern, the prolonged pendency of constitutional references.

The joint order noted that the Anoop Baranwal case originated from a 2015 petition, was referred to a Constitution Bench in 2018 and took another five years to be decided. The judges said such delays require institutional introspection.

They consequently requested the CJI to explore the possibility of establishing a permanent five-judge bench to decide pure constitutional questions, noting that references can remain pending for years.

For now, therefore, the 2023 appointment mechanism remains unchanged.

But the larger constitutional battle has only just begun: whether the Election Commission can be considered sufficiently independent when two of the three members selecting its top officials are drawn from the executive will now be decided by a Constitution Bench.