Justice Dipankar Datta expressed prima facie concerns over the independence of the present selection mechanism, under which the Prime Minister and a Union Cabinet Minister nominated by him sit alongside the Leader of Opposition.
BY PC Bureau
NEW DELHI, September 23: The Supreme Court on Wednesday referred the constitutional challenge to the 2023 law governing the appointment of the Chief Election Commissioner and Election Commissioners to the Chief Justice of India for constitution of a Constitution Bench, after a two-judge Bench delivered a split view on whether a larger-bench reference was necessary.
A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma disagreed on the need for a reference but agreed that sending the matter first to a three-judge Bench merely to determine whether a larger Bench was required would cause further delay. They therefore directed that the petitions be placed before the CJI for constitution of a Constitution Bench of appropriate strength.
The petitions challenge the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the selection mechanism laid down by the Supreme Court in Anoop Baranwal v. Union of India pending parliamentary legislation.
Justice Datta questions independence of present mechanism
While Justice Datta held that a reference to a larger Bench was not necessary, he expressed significant prima facie reservations about whether the present appointment mechanism adequately safeguards the institutional independence of the Election Commission.
Under Section 7 of the 2023 Act, the selection committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition in the Lok Sabha. The arrangement gives the two government nominees a majority on the three-member panel.
Justice Datta questioned whether such a composition provides a sufficient institutional safeguard against executive dominance. He observed that a nominee of the Prime Minister could not realistically be expected to act contrary to the Prime Minister and questioned the independence of a committee in which the executive has two members.
He also stressed that the Election Commission must not only be independent but must appear independent to the public, drawing an analogy with the selection of a cricket umpire: even if the umpire acts fairly, doubts may arise if one side effectively controls the appointment.
These observations are prima facie views expressed by Justice Datta in the course of the present proceedings, not a final ruling on the constitutional validity of the 2023 Act.
Difference over Anoop Baranwal
Justice Datta’s reasoning also turned on the Supreme Court’s 2023 Constitution Bench judgment in Anoop Baranwal v. Union of India.
In that case, the Court had directed that, until Parliament enacted legislation, the CEC and ECs should be appointed on the recommendation of a committee comprising the Prime Minister, Chief Justice of India and Leader of Opposition. The Court’s judgment was expressly intended to operate until Parliament made a law on the subject.
The Union government has argued that Anoop Baranwal was an interim arrangement to fill a legislative vacuum and did not prescribe the precise composition Parliament was constitutionally required to adopt.
That argument has featured prominently in the proceedings. During an earlier hearing, Justice Datta himself had observed that Anoop Baranwal was intended to fill the vacuum until Parliament enacted a law and did not dictate that Parliament must adopt a particular appointment structure.
The petitioners, however, contend that the constitutional principle underlying Anoop Baranwal—the need for an Election Commission insulated from executive dominance—cannot be displaced merely by legislation.
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Justice Sharma takes a different view
Justice Satish Chandra Sharma took the view that the petitions raise a substantial question of constitutional interpretation warranting consideration by a Constitution Bench under Article 145(3).
Thus, while the judges differed on whether the existing Constitution Bench precedents already answered the reference question, they ultimately agreed on the practical course of sending the matter to the CJI rather than prolonging the preliminary dispute before another bench.
What the 2023 law changed
The principal controversy concerns the composition of the selection committee.
Under the arrangement prescribed by the Supreme Court in Anoop Baranwal, the committee consisted of the Prime Minister, the Chief Justice of India and the Leader of Opposition.
The 2023 Act replaced the CJI with a Union Cabinet Minister nominated by the Prime Minister.
The petitioners argue that this gives the executive two of the three votes and undermines the independence of the constitutional body responsible for conducting elections. They have challenged the law on constitutional grounds including the principles of free and fair elections, institutional independence and the basic structure of the Constitution.
The Supreme Court itself has previously recorded that the challenge alleges that Section 7(1) of the 2023 Act substitutes the CJI with a Union Cabinet Minister nominated by the Prime Minister and that the change potentially affects the conduct of transparent, free and fair elections.
The Centre has defended Parliament’s power to legislate on the appointment mechanism under Article 324 and has argued that Anoop Baranwal did not permanently occupy the field.
Constitution Bench to decide the larger constitutional issue
The Supreme Court’s Wednesday order does not decide the validity of the 2023 Act. It only clears the way for consideration by a Constitution Bench.
The larger Bench will ultimately have to examine whether Parliament’s replacement of the CJI with a Union Cabinet Minister nominated by the Prime Minister is constitutionally permissible and whether the composition of the selection committee adequately protects the independence required of the Election Commission.
The Bench also expressed concern over delays in constitution-bench matters and discussed the possibility of having a more permanent institutional arrangement for dealing with substantial constitutional questions.
For now, the next procedural step rests with CJI Surya Kant, who will determine the constitution and strength of the Bench that will hear the challenge.
