The Supreme Court on Wednesday delivered a split verdict on the Union government’s demand 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 2023 Act is under challenge for replacing the Chief Justice of India (CJI) with a Cabinet Minister on the selection panel which appoints Election Commissioners. The Central government had requested the Court refer the matter to a larger bench under Article 145(3) of the Constitution.
Bench Divided on Reference Request
Justices Dipankar Datta and Satish Chandra Sharma had postponed their decision on the referral request until July 30. Justice Datta rejected the government’s request for reference. He went on to deliver a prima facie opinion on the challenge to the 2023 Act. He observed that it was not enough for the Election Commission of India (ECI) to be independent. It must also appear to be independent, the judge said. According to the judge, a minister appointed by the Prime Minister could not realistically defy their own political leader due to the principle of collective responsibility. He concluded that including Cabinet Ministers on the selection panel undermines the need for an impartial decision-maker.
Justice Sharma, however, took a different stance, arguing that the case raised significant legal questions that warranted a larger bench’s review. Due to their conflicting views, the Court directed that the matter be forwarded to the Chief Justice of India to decide if a full constitutional bench should be convened. The 2023 Act’s selection committee now consists of the Prime Minister, the Leader of the Opposition, and a Cabinet Minister chosen by the Prime Minister.
Legal Challenges and Historical Context
The petitions challenging the law contend that it violates the constitutional requirement of an independent Election Commission by excluding the Chief Justice of India from the selection process. The challenge stems from the Supreme Court’s 2023 Constitution Bench ruling in Anoop Baranwal v. Union of India, which had directed that appointments to the Election Commission would be made by a committee comprising the Prime Minister, the Leader of Opposition and the CJI, unless a law is enacted in this regard by the parliament. During arguments, Solicitor General Tushar Mehta defended the government’s position, claiming the earlier ruling only addressed a legislative gap and that once Parliament passed a law, its judgment should take precedence over the Court’s temporary guidance.
