CEC-EC Appointment Act: Supreme Court Delivers Split Verdict On Referring Case To Larger Bench; Matter Sent To CJI

The Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma differed on the preliminary question of reference, with Justice Datta rejecting the plea while Justice Sharma held that the matter warranted consideration by a Constitution Bench.

The petitions challenge the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), including the composition of the selection committee. The law replaced the framework laid down by the Supreme Court's Constitution Bench in Anoop Baranwal v. Union of India.

Justice Datta, while pronouncing his opinion, noted that the Bench had heard the petitions for over five days and said that speaking in one voice would have served institutional cohesion. However, owing to the difference of opinion, he had to write a more elaborate order. He emphasised the constitutional principle that India is a government of laws and that those exercising power remain bound by law.

Justice Datta rejects larger bench reference

Justice Datta held that the challenge did not raise an unsettled substantial question of constitutional law warranting reference to a larger Bench. He observed that the 2023 Act had introduced “a new element to the canvas”, but held that the questions arising from it could be examined by applying settled constitutional principles. He therefore concluded that neither a constitutional bar nor precedent prevented the present Bench from hearing the petitions.

Justice Datta also observed that free and fair elections constitute a basic feature of the Constitution and that the Election Commission must be insulated from exclusive executive control in the appointment of the CEC and ECs.

On the issue of institutional independence, Justice Datta used a cricket analogy, observing that if an umpire in a match is selected by the captain of the winning side, even correct decisions could carry a “patina of suspicion” because of the manner of the umpire's selection. He further said: “It is not enough for the ECI to be independent; it must also appear to be independent.”

Justice Datta questioned the role of the Union Cabinet Minister in the selection committee, observing that a minister nominated by the Prime Minister, as part of the Council of Ministers, could not be expected to defy his own nominator. He also described the presence of the Leader of Opposition as “largely ornamental” in the existing structure.

According to Justice Datta, the challengers' argument that the 2023 Act gives “overwhelming selection power” to the Executive and undermines the appearance of independence required under Article 324 and the basic structure “prima facie, does appear to have substance.”

Justice Datta raises concerns over collegium appointments

Justice Datta also addressed the broader issue of judicial appointments and the frequently used phrase “judges appointing judges”. He described the oft-repeated assertion as a “myth” and said the narrative overlooked the detailed consultation process under the Constitution and the role of the Executive, intelligence agencies and other authorities in judicial appointments.

He also criticised the selective implementation of Collegium recommendations by the Executive. “What is most worrying and needs attention for a remedy is that the sanctity of a Collegium resolution is lost each time the Executive implements it selectively,” Justice Datta observed. He questioned how long such a practice could continue if selective implementation became accepted practice.

Justice Datta further questioned the call for an “outsider” to be inducted at the stage of judicial selection, observing that the judiciary had already been “relegated to playing second fiddle to the executive” in judicial appointments.

Justice Sharma favours Constitutional Bench

Justice SC Sharma disagreed with Justice Datta and held that the matter deserved consideration by a Constitution Bench. “With utmost humility, I am unable to persuade myself to accept all the observations made, or the line of reasoning adopted by His Lordship,” Justice Sharma said.

Justice Sharma held that whether Parliament was justified in excluding a neutral selector from the ECI appointment committee was an important question arising before the Supreme Court for the first time and involved a substantial question of law concerning interpretation of the Constitution. He relied on Article 145(3) and the Supreme Court Rules to hold that such a question could not finally be determined by the present two-judge Bench.

Justice Sharma rejected the argument that a Constitution Bench reference would reopen questions already settled in Anoop Baranwal. He held that whether the 2023 Act satisfies the constitutional requirement of free and fair elections had to be independently examined.

Justice Sharma proposed that the petitions be placed before the Chief Justice of India for appropriate orders constituting a Constitution Bench to adjudicate the constitutional validity of Sections 6, 7 and 8 of the 2023 Act.

Supreme Court flags delays in Constitutional Bench references

The Bench also expressed concern over prolonged delays in deciding Constitution Bench references. The Court described pendency of references for periods ranging from five to 20 years or more as a matter of “great concern” and an “institutional embarrassment”.

It noted that the reference in Anoop Baranwal was made three years after the 2015 writ petition and took another five years to be decided, resulting in an eight-year period.

The Court also referred to Javed Singh, where a reference remained pending for 15 years before being decided by a nine-judge Bench. “Self-introspection, indeed, is required,” the Court observed.

The Bench requested the CJI to explore the possibility of constituting a permanent five-judge Bench to decide pure constitutional questions, noting that resolving constitutional issues should remain a core priority of the Supreme Court.

The Court expressed hope that the present reference, involving issues of “foundational importance to the democratic fabric of the country and its citizenry”, would not suffer a similar delay.

The matter will now be placed before the CJI for appropriate directions in view of the split verdict.

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