The Supreme Court on Wednesday delivered a split verdict on the Union government’s plea seeking the challenge to the law governing appointments of Election Commissioners and Chief Election Commissioners be referred to a larger bench.
The bench of Justice Dipankar Datta and Justice Satish Chandra Sharma differed on whether the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 warranted consideration by a Constitution Bench. Justice Datta rejected the Centre’s plea for referring it to a larger bench while Justice Sharma said it needed consideration by a bench with more judges. The matter will now be placed before Chief Justice of India Justice Surya Kant to consider whether a Constitution Bench should be constituted.
In his judgement, Justice Datta raised broader concerns over institutional independence, executive influence in appointments and prolonged delays in deciding constitutional questions.
Among the Union’s many arguments defending the removal of the Chief Justice of India from the panel choosing Election Commissioners, which the Centre said was a temporary measure until Parliament passed a law, one was that the Collegium already favoured judges choosing judges and, therefore, there was nothing wrong in letting the Executive have a larger say in the choice of Election Commissioners.
In response, Justice Datta punctured the popular layman’s bias that judges appoint judges and called it a myth. He said the vast populace had been led asunder by vested interests through manipulated narratives to believe that was the case. He listed the process of checks and balances including intelligence inputs from the Centre and the states on each candidate before the Collegium that are weighed before making any recommendations.
Justice Datta also said the Centre’s selective vetting of Collegium proposals causes delays. He has previously expressed concern over the manner in which Collegium recommendations are processed, including instances where recommendations are not acted upon uniformly. His observations have highlighted the distinction between the Collegium making recommendations and the formal appointment of judges, which is carried out through the constitutional process involving the Executive.
The bench made an observation on the years-long pendency of matters referred to larger Constitution benches since the petitioners had opposed the Union’s request for a reference, saying sending it to a larger bench could result in considerable delay. The Court acknowledged that the apprehension was not unfounded.
Conceding that constitutional references have languished for years, the bench called for deep judicial self-introspection and urged the CJI to create a permanent five-judge bench to tackle constitutional niggles. The suggestion assumes significance as constitutional questions frequently remain pending after being referred to larger Benches, sometimes for extended periods before final adjudication.
The immediate controversy before the Bench concerns the 2023 Act, which provides for a three-member Selection Committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
The petitioners challenged the replacement of the Chief Justice of India with a Union Cabinet Minister on the Selection Committee, arguing that the change affects the institutional independence of the Election Commission. Justice Datta observed that the Election Commission must not only be independent but must also be perceived to be independent.
Justice Datta noted that expecting a Cabinet Minister to oppose the Prime Minister or government is unrealistic, making their inclusion ineffective as an independent check. He also observed that the Court had heard the petitions for more than five days before arriving at differing conclusions on the question of reference.
Justice Datta remarked that while a unified voice would have best demonstrated institutional cohesion after five days of hearings, the bench remained divided, noting that a core constitutional principle dictates that rulers are strictly bound by law.
The challenge to the 2023 law follows the Supreme Court’s Constitution Bench judgment in Anoop Baranwal v. Union of India, in which the Court had prescribed a selection committee comprising the Prime Minister, Leader of Opposition and the CJI for appointments to the Election Commission until Parliament enacted a law governing the process.
The Union government subsequently enacted the 2023 legislation and replaced the CJI in the Selection Committee with a Cabinet Minister nominated by the Prime Minister.
Solicitor General Tushar Mehta, appearing for the Centre, argued that the mechanism prescribed in Anoop Baranwal was only an interim arrangement intended to fill a legislative vacuum. Once Parliament enacted a law, he submitted, the mechanism prescribed by the Court could no longer govern the appointments.
The Centre consequently sought a reference under Article 145(3) of the Constitution, contending that the challenge raises substantial questions concerning Article 324 and Parliament’s power to determine the appointment mechanism for Election Commissioners.
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