Subject: Separation of Powers

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.”

Why in the News

The Supreme Court has used Article 142 of the Constitution to quash first information reports filed across several States against participants in the nationwide examination protests led by the Cockroach Janta Party (CJP). The order gives legal force to an assurance the Union government had already given to CJP members. A negotiated settlement between the Centre and a protest group therefore takes effect as a judicial decree. Article 142 allows the Court to pass any decree or order necessary for doing “complete justice” in a matter pending before it, and it neither defines that phrase nor states when the power may be used. The Court has itself held that this power may fill a gap in a statute but may not override a statutory scheme. What is contested is whether quashing thousands of pending cases in a single order, without examining any of them on its own facts, fills such a gap or replaces one.

What is Article 142?

1. The text of the power: Article 142 lets the Supreme Court pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it.
2. What the provision leaves open: It does not define “complete justice” and it does not specify the circumstances in which the power may be used.
3. Its statutory ancestor: The provision traces to Section 210 of the Government of India Act, 1935, and behind that to the colonial practice of deciding disputes on “justice, equity and good conscience” where the written law was silent.

How did a power this wide enter the Constitution without debate?

1. Adopted as Draft Article 118: The provision appeared in the Draft Constitution as Article 118 and was adopted by the Constituent Assembly on 27 May 1949 without a debate.
2. Two amendments were dropped: Two amendments to it were moved and then withdrawn.
3. The nearest the Assembly came to discussing it: During an earlier debate on a related Article granting the court special leave to hear appeals, the member Krishna Chandra Sharma compared the proposed powers to the Privy Council’s own power to step in wherever justice demanded, appeal or no appeal.
4. The scope was left to the Court: The content of the Court’s widest power was worked out case by case over the following seven decades rather than settled at the drafting stage.

How has the Court used this power?

1. The Bhopal gas tragedy settlement: Article 142 was used to secure a payout of 470 million dollars from Union Carbide and to quash the criminal cases against the company.
2. The Ayodhya title dispute: The power was used to settle the dispute on a “preponderance of probability” and to direct that five acres of land be given to the Muslim side.
3. A convict’s release: The Court ordered the release of A G Perarivalan, a convict in the Rajiv Gandhi assassination case.
4. Routine civil use: The provision is also used to grant divorce where a marriage has irretrievably broken down, and in public interest litigation.
5. The measured scale of its use: An empirical study by researchers at the Indian Institute of Management, Ahmedabad examined every case between 1950 and 2023 citing “Article 142” or “complete justice”, and found 1,579 references and 791 direct invocations, mostly in civil matters.

Has the Court fenced its own power?

1. Consistency with law and rights: In Prem Chand Garg versus State of Uttar Pradesh (1962) the Court held that orders under Article 142 must still be consistent with fundamental rights and with the law.
2. Supplement, not supplant: In Supreme Court Bar Association versus Union of India (1998) the Court held that Article 142 can supplement a statute by filling a gap the law leaves open. The same ruling held that it cannot supplant a statute or override an existing statutory scheme.
3. The limits are not self enforcing: The Court has often disregarded its own caution, and no institution outside the Court can hold it to these two rulings.
4. Discretion multiplies across benches: The effect of an undefined discretion is magnified in a court of 38 judges sitting mostly in benches of two.

How does the CJP order test that limit?

1. The ordinary statutory route: A first information report is examined on its own facts before being quashed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with the court asking whether an offence is made out or whether the case is plainly malicious.
2. What the order did instead: Thousands of first information reports across several States were clubbed together and quashed without that scrutiny, as part of a negotiated settlement.
3. The statutory scheme is displaced, not supplemented: The order substitutes the Court’s view of how the law ought to operate for the procedure the statute lays down for quashing.
4. The Court also decides who is excluded: The same discretion under Article 142 determines which protesters are left out of the relief.
5. The scholarly objection: Legal scholar Gautam Bhatia argues that criminal law provisions cannot be overridden through a blanket judicial decree.

Why had Article 142 already drawn criticism?

1. The Tamil Nadu Bills order: The Court used the same provision last year to deem long withheld Bills of the Tamil Nadu legislature as assented to.
2. The response from the Vice President: The Vice President described that use of the power as a “nuclear missile” against democratic institutions.
3. A former law officer’s warning: A former Attorney General of India wrote in 2017 that the provision had done “tremendous good” for deprived sections of society, and that it was time to build in checks and balances.
4. A proposal to restrict who may invoke it: After the Sabarimala judgment the same former Attorney General described Article 142 as a “Kamdhenu from which unlimited powers flowed”, and proposed that only Constitution Benches of five judges be allowed to invoke it, so that its use does not turn on the reading of a single smaller Bench.

Challenges to Article 142

1. No stated standard for “complete justice”: The Constitution attaches no test to the power, so its width is settled afresh in each case by the Bench exercising it. Eg. In Delhi Development Authority versus Skipper Construction Company (1996) the power was used to reach the personal assets of persons who were not parties to the proceeding before the Court.
   The Fix: Require every order made under the provision to record on the face of the order the specific statutory gap it is filling and the limits of the relief granted.
2. Bench strength does not scale with the consequence: No minimum Bench is prescribed, so an order altering an outcome for an entire class can issue from a small Bench. Eg. A three judge Bench in 2024 set aside the declared result of the Chandigarh mayoral election and declared the defeated candidate elected.
   The Fix: Maintain a published, reasoned compilation of orders made under the provision, so a body of standards accumulates instead of scattered discretion.
3. The relief creates no right for the next litigant: An order for complete justice is granted on the facts of one case, so a similarly placed person cannot claim the same relief from a lower court. Eg. Divorce on the ground of irretrievable breakdown, allowed in Shilpa Sailesh versus Varun Sreenivasan (2023), is available only from the Supreme Court, since that ground does not exist in the Hindu Marriage Act, 1955.
   The Fix: Where the power is repeatedly used to fill the same statutory gap, refer that gap to the Union government with a reasoned recommendation to amend the statute.
4. Only the same court can correct such an order: An order issues from the highest court, so the sole remedy is a review or a curative petition before that court. Eg. The curative petition route created in Rupa Ashok Hurra versus Ashok Hurra (2002) is itself a judge made remedy and succeeds in very few cases.
   The Fix: List every order that departs from a statutory scheme for a compliance hearing before the same Bench, so an order that misfires is corrected on the record.

Conclusion

The Court’s limits on its own widest power are self imposed, and nothing outside the Court enforces them. The unresolved question is whether a power designed to fill silences in the law may be used to set aside a procedure the law expressly provides, on terms agreed between a litigant and the government. What to watch is whether the Court itself frames a standard for when the power may be exercised, because no other institution can.

Back2Basics: Bharatiya Nagarik Suraksha Sanhita, 2023

1. What it is: The statute governing criminal procedure in India, covering investigation, arrest, trial and the powers of criminal courts.
2. What it replaced: It came into force on 1 July 2024 in place of the Code of Criminal Procedure, 1973.
3. Its companion statutes: It was enacted alongside the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023.
4. The quashing power it carries: Section 528 preserves the inherent powers of a High Court, which include quashing proceedings to prevent abuse of the process of a court.

[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.”