The Supreme Court on Thursday reserved its decision on whether petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 should be referred to a Constitution Bench.
A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma was hearing a batch of petitions questioning the constitutional validity of the 2023 law, which governs the appointment of the Chief Election Commissioner (CEC) and Election Commissioners. During the hearing, the Bench observed that the current system of judicial appointments has also undergone changes, while expressing concern over whether the composition of the selection committee under the new law sufficiently demonstrates institutional fairness.
The Court noted that the selection committee under the 2023 Act consists of the Prime Minister, the Leader of Opposition and a Union Cabinet Minister, resulting in a two-to-one numerical advantage for the executive. It observed that while there was no reason to doubt the integrity of the Prime Minister or the fairness of the process, the appointment mechanism for an independent constitutional authority should also inspire public confidence by visibly reflecting fairness.
The Bench also referred to concerns expressed by Dr. B.R. Ambedkar regarding the functioning of democracy and sought information from the Union government on the number of States where ministers are facing criminal cases.
Solicitor General Tushar Mehta, appearing for the Union government, argued that the matter raises substantial constitutional questions and should therefore be referred to a larger Bench under Article 145(3) of the Constitution. He submitted that the Supreme Court’s decision in Anoop Baranwal v. Union of India merely filled a legislative vacuum until Parliament enacted a law and that legislative wisdom could not be permanently constrained by an interim judicial arrangement.
The Court, however, noted that references to larger Benches often remain pending for years and indicated that it would first consider the merits before deciding whether a reference was necessary.
Attorney General R. Venkataramani also supported the request for a reference.
Opposing the plea, Advocate Prashant Bhushan and Senior Advocates Vijay Hansaria, Shadan Farasat and Gopal Sankaranarayanan argued that the issue had already been settled by the Constitution Bench in Anoop Baranwal. They contended that executive dominance in the appointment process undermines the constitutional requirement of an independent Election Commission and defeats the principle of free and fair elections embodied in Article 324 of the Constitution.
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