Supreme Court split on larger bench referral in challenge to CEC, EC appointments law

New Delhi, Sep 23: The Supreme Court on Wednesday delivered split opinions on whether challenges to the 2023 law governing appointments of the Chief Election Commissioner and election commissioners should be referred to a larger Constitution bench. The matter will be placed before Chief Justice of India Surya Kant on the administrative side for constitution of a bench of appropriate strength.

A bench of Justices Dipankar Datta and Satish Chandra Sharma had heard the pleas for five days. Justice Datta declined the Centre's request for a five-judge bench, while Justice Sharma favoured referring the constitutionally significant questions to a larger bench. The judges also requested the CJI to explore a permanent five-judge Constitution bench to decide seminal issues.

The petitions challenge the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which excludes the CJI from the selection panel. Under the law, the panel comprises the prime minister, the leader of the opposition in the Lok Sabha and a Union minister nominated by the prime minister.

Justice Datta said the Election Commission must not only be independent but also be seen to act independently. He made prima facie observations, without giving a conclusive answer on the law's validity, that the petitioners' concern over the executive's dominance of the selection panel appeared to have substance.

With two executive members on the three-person panel, the executive would have an effective veto, Justice Datta observed. He said a minister nominated by the prime minister could hardly be expected to oppose the prime minister, making the opposition leader's presence largely ornamental rather than providing an independent counterweight.

Justice Datta used a cricket analogy to explain his concern about public perception: even correct decisions by an umpire picked by the captain of the winning side would carry a "patina of suspicion". The 2023 Act might survive the direct challenge over the CJI's exclusion, he said, but would also have to pass a test of perceived independence.

He questioned whether the selection committee under Section 7 of the law appeared as independent as the temporary committee laid down by the Supreme Court in 2023. Justice Datta also said successive governments had sought to preserve leverage over institutions intended to be independent, describing the issue as not confined to any one party or period.

In March 2023, a five-judge Constitution bench had directed that the president appoint the CEC and election commissioners on the advice of a committee comprising the prime minister, the opposition leader and the CJI. Parliament enacted the new appointments law in December that year. The Supreme Court had earlier refused to stay appointments under it.

(With inputs from PTI)