EC appointment: Why SC placed matter before CJI

Why in the News

A two judge Bench of the Supreme Court has referred petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to the Chief Justice of India (CJI), to consider forming a Constitution Bench. The two judges split on whether a larger bench was needed at all, and agreed only on placing the matter before the CJI. The challenge answers Anoop Baranwal v. Union of India (2023). A five judge Constitution Bench in that case laid down an interim selection committee for appointments to the Election Commission, comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and the CJI. The 2023 Act then replaced the CJI on that committee with a Union Cabinet Minister nominated by the Prime Minister, giving the Union a 2:1 majority on a three member panel. The contested point is whether that replacement raises a constitutional question the Court has never answered, or merely applies a principle it settled in 2023.

What is a Constitution Bench?

1. Composition and trigger: Under Article 145(3), a Constitution Bench of five or more judges decides a “substantial question of law” involving the interpretation of the Constitution.
2. The question must be unsettled: A case does not go to a larger bench merely because it involves the Constitution. The question must be one the Court has never authoritatively answered before.
3. Precedential weight: Constitution Bench rulings carry greater weight than ordinary judgments.
4. How a split verdict reaches one: When two judges cannot agree, the matter goes to the Chief Justice of India, who decides whether to send it to a larger bench. The split by itself does not automatically warrant a Constitution Bench.

What did the 2023 Act change about appointments to the Election Commission?

1. The constitutional gap: Article 324(2) provides that the Chief Election Commissioner and other Election Commissioners are appointed by the President, subject to any law Parliament may make. Parliament made no such law for 73 years, and appointments were made under the executive’s own framework.
2. The litigation: A writ petition under Article 32 challenging the absence of such a law was filed in 2015. A two judge bench referred the matter to a Constitution Bench in 2018.
3. What Anoop Baranwal held: The Constitution Bench delivered its judgment in March 2023, holding that appointments to the Election Commission cannot remain under “exclusive executive control”. It underlined that those entrusted with conducting elections must be insulated from executive influence.
4. The statutory answer: Parliament passed the Act in December 2023. The selection committee it created comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition.

What did Justice Dipankar Datta hold?

1. The present Bench could decide: He took the view that the petitions could be decided by the present Bench itself. The governing constitutional principle was already settled in Anoop Baranwal, and the remaining question was only whether the 2023 law complies with it.
2. No bar on the present Bench: That exercise was “no more than the application of the settled principles of law to the facts of the case”. He held that “neither any Constitutional bar nor a precedent precludes hearing of these petitions by the present Bench”.
3. The panel’s internal balance: A minister bound by collective responsibility “cannot be expected to defy his own nominator”. The presence of the Leader of Opposition on the selection committee therefore becomes “largely ornamental”.
4. The perception test: He emphasised that “it is not enough for the ECI to be independent, it must also appear to be independent”. On the argument that the law gives the executive overwhelming influence over appointments, he said it “does appear to have substance”, while stating that these were prima facie observations.
5. The collegium comparison rejected: He rejected the government’s comparison between the Election Commission selection process and the collegium system for judicial appointments. Judicial appointments involve the executive at multiple stages, and he described the popular notion that “judges appoint judges” as a “myth”.
6. Why the comparison fails: The absence of a neutral member in the collegium cannot justify the absence of a neutral member in the Election Commission appointment process. He described the government’s comparison as “disingenuous, evasive and disquieting”.

What did Justice Satish Chandra Sharma hold?

1. A first time question: He held that the challenge must be referred to a Constitution Bench, because the Court is examining the constitutional validity of the 2023 Act for the first time. “There is no authoritative decision of this court till date pronouncing on the constitutional validity of the said Act,” he said.
2. The key question: For him the key question was whether Parliament was justified in not including a neutral selector in the selection committee. He called that “an important question arising for the first time before this court”.
3. Why Article 145(3) binds: Since the question “has not been dealt with in any precedent”, Article 145(3) left “no room for a decision on such question finally by the present combination” of two judges.
4. What else needs a larger bench: He viewed the government’s arguments on separation of powers, and its comparison with the collegium system, as issues requiring examination by a larger bench.
5. The petitioners’ counter: The petitioners had argued that the central legal question, that the selection must be an independent process, was already decided by the 2023 Constitution Bench ruling.

Why did both judges still send the matter to the CJI?

1. A three judge bench would add nothing: They held that sending the issue first to a three judge bench would be of “little worth” and would only delay a final decision on the important constitutional questions raised.
2. The record on delay: They flagged the long delays in deciding constitutional references. The Anoop Baranwal case took eight years to reach a final judgment, and they cited other references that remained pending for years.
3. The characterisation: They called such delays “a source of institutional embarrassment”.
4. The structural suggestion: They urged the CJI to consider setting up a permanent five judge bench for constitutional cases.

What do earlier split verdicts show about referral?

1. The hijab case: The Supreme Court delivered a split verdict in the Karnataka hijab case in October 2022. The matter was referred to a larger bench and remains pending more than four years later.
2. The Prevention of Corruption Act reference: A split verdict earlier this year on Section 17A of the Prevention of Corruption Act, 1988 also went to a larger bench.
3. What referral does not settle: Referral moves the question; it does not schedule the answer. Both examples are the delay the present Bench cited as its reason for skipping an intermediate step.

Conclusion

The referral leaves the substantive question where it was: whether a selection panel on which the executive holds the majority can produce an Election Commission that appears independent. One judge holds that the question is already answered in principle and needs only application. The other holds that it has never been put to the Court at all. What the CJI now decides is not the validity of the 2023 Act but how long the country waits for a ruling on it, and the Bench’s own warning about how long constitutional references take is why that matters.

Back2Basics: Election Commission of India

1. Constitutional basis: Article 324 vests the superintendence, direction and control of elections to Parliament, the State legislatures, the office of President and the office of Vice-President in the Election Commission of India.
2. Composition: It consists of the Chief Election Commissioner and such number of other Election Commissioners as the President may fix. It has functioned as a three member body since 1993.
3. Tenure: The Chief Election Commissioner and the Election Commissioners hold office for six years or until the age of 65, whichever is earlier.
4. Removal: The Chief Election Commissioner can be removed only in the same manner and on the same grounds as a judge of the Supreme Court. An Election Commissioner can be removed only on the recommendation of the Chief Election Commissioner.

Matching Previous Year Question

“[2019, GS2, 10 marks] Do you think that constitution of India does not accept principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain.”