The Supreme Court on Wednesday delivered a split verdict on whether petitions challenging the law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be placed before a five-judge Constitution Bench.
A bench of Justices Dipankar Datta and Satish Chandra Sharma was hearing challenges to the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The petitions question the exclusion of the Chief Justice of India (CJI) from the committee that selects the CEC and ECs.
Judges differ on larger bench
Justice Datta declined the request for a reference, while Justice Sharma held that the matter should be considered by a larger bench.
The issue before the court was whether the challenges raise a “substantial question of law” involving interpretation of the Constitution, which under Article 145(3) requires a bench of at least five judges.
The matter had been heard at length, with the bench reserving its order in July on the question of reference.
Petitioners challenge CJI’s exclusion
The petitions, including those filed by the Association for Democratic Reforms (ADR) and Congress leader Jaya Thakur, challenge the 2023 law that changed the composition of the selection committee.
Under the present law, the committee comprises the Prime Minister, a Union Cabinet minister nominated by the Prime Minister and the Leader of Opposition in the Lok Sabha. The CJI, who was part of the interim selection mechanism laid down by the Supreme Court in its 2023 judgment, is not included.
The petitioners have argued that removing the CJI could affect the independence of the Election Commission and the constitutional requirement of free and fair elections.
Centre invokes Article 145(3)
During the proceedings, Attorney General R Venkataramani and Solicitor General Tushar Mehta argued that the case involves substantial constitutional questions and therefore requires consideration by a bench of at least five judges.
Article 324 provides for Parliament to make a law governing the appointment and service conditions of Election Commissioners. The 2023 legislation was enacted after the Supreme Court's March 2023 judgment had prescribed an interim selection panel comprising the Prime Minister, Leader of Opposition and CJI until Parliament made a law.
The Supreme Court's next step will depend on the course adopted following the split verdict and the Chief Justice's decision on the constitution of the bench.