ECI Appointments Act, 2023 | Day 4: Bench considers reference to a larger bench

Shukla: Law is a “fraud” to the Constitution 

Shukla argued that the Act lacks provisions to preserve the independence of the Election Commission of India (ECI). Representing the organisation Lok Prahari, he sought the invalidation of the law and all appointments made under it, including those of Gyanesh Kumar and Dr. Sukhbir Singh Sandhu.

Turning to Section 6, Shukla urged  it be set aside because it establishes a Search Committee “headed by the Minister of Law and Justice.” He argued that since the Minister also appoints other committee members, the process becomes a “one-man show.” This Search Committee recommends names to the Selection Committee established under Section 7. Shukla echoed earlier arguments  by Senior Advocate Vijay Hansaria, who noted that the Act provides no prescribed process for appointing the Search Committee itself, despite the Selection Committee being limited to their shortlist.

Shukla argued that the combined presence of the Prime Minister and his nominated Minister ensures the PM’s candidates are inevitably chosen, reducing the LoP to a minority voice. “Mere inclusion of the LoP is meaningless, as his opinion can be ignored and overruled by the Prime Minister,” he stated.

Shukla maintained that the Court should strike down Sections 6 and 7 for violating Article 324. He also challenged the constitutionality of Section 8, which empowers the Selection Committee to regulate its own procedures and appoint a candidate  not included in the Search Committee’s shortlist. Referring to Anoop Baranwal, Shukla concluded that the statute passed by Parliament fails to address the existing lacuna in the appointment process, defeating the purpose of a “well-considered decision.”

Shukla: New appointees lack qualifications

Shukla claimed that recent appointments were driven by “political considerations,” arguing that the appointees lack the necessary qualifications. He asserted that  their biographies on the ECI website, do not demonstrate the “knowledge and experience” required for managing and conducting elections. “One wonders if they can be considered good enough for this job,” he added.

Justice S.C. Sharma interjected, observing that the commissioners possess relevant experience as former IAS officers. Shukla countered by highlighting the specific backgrounds of the appointees: Sandhu, as Chief Secretary, had laid the groundwork for the Uniform Civil Code in Uttarakhand, while Kumar served as Secretary in the Ministry of Home Affairs during the abrogation of Article 370.

While Justice Sharma nudged Shukla to focus on legal arguments, Shukla maintained that the LoP’s dissent against the appointments was ignored. He further argued that the President acted as a “rubber stamp,” as the executive withheld essential details such as meeting minutes and qualification assessments from the President. When asked how he knew this, Shukla stated that the formal recommendations omit them. Justice Sharma noted that even in Collegium recommendations, such granular details are typically excluded from the public record.

 Venkataramani: Anoop Baranwal is no more binding

Venkataramani distinguished between the Court’s powers under Article 142 and Article 141. He argued that directions issued under Article 142 to ensure “complete justice” lack the same precedential weight as laws declared under Article 141, which are binding on all courts. He contended that Anoop Baranwal fell under Article 142, as the Court was merely addressing a temporary vacuum in the appointment process of Election Commissioners. The interim committee of the PM, the LoP, and the CJI, lost its basis once Parliament enacted a law. Consequently, he submitted that Anoop Baranwal has now become a “matter of history.”

Justice Dipankar Datta challenged this, describing Anoop Baranwal as a “classic case of judicial restraint and statesmanship.” Justice Datta noted that the Court deliberately avoided “judicial legislation” under Article 141. However, he questioned why the five-judge Bench authored over 300 paragraphs of reasoning on ECI independence if the intent was only to issue a temporary direction. He asked whether the Court was “indicating a mechanism” based on its interpretation of constitutional independence. Justice Datta clarified that the current Bench does not intend to decide the case solely on the inclusion of the CJI, but will instead interpret the law based on whether it violates constitutional provisions, such as Article 14.

Venkataramani conceded that Anoop Baranwal captures the “narration of several well-minded people” and affirms the principle of an independent ECI. However, he argued that these judicial reflections are not binding on Parliament, suggesting that the petitioners incorrectly treated Parliament as an “executive” body. He maintained that Parliament has the authority to weigh various models and provide a workable process, and  stated that prior to Anoop Baranwal, the ECI had not appeared biased.

Justice Datta probed how such independence could be secured and questioned the inclusion of a Cabinet Minister in the process, noting that the LoP seems “ornamental” in the current composition. Venkataramani reiterated that Parliament’s chosen model prevents “infiltration” into the appointment system.

Bench deliberates referring to a larger bench 

Justice Sharma, speaking for the Bench, informed the petitioners that the Attorney General had raised a significant issue: the case involves fundamental constitutional questions that must be determined in accordance with Article 145(3). This article mandates that any matter involving a substantial question of law regarding the interpretation of the Constitution should be heard by a bench of no fewer than five judges. The Bench noted that since legislation on ECI appointments was passed for the first time in seven decades, it should ideally be heard by a larger bench rather than a two-judge Division Bench.

The petitioners—Senior Advocates Gopal Sankaranarayanan, Shadan Farasat, Vijay Hansaria, and Advocate Prashant Bhushan—appeared visibly frustrated. Bhushan argued that five Constitution Bench decisions already cover the independence of the Election Commission, repeating his submissions from the previous week. Farasat and Hansaria noted that the Union’s counter-affidavit, filed only a day prior, made no mention of Article 145(3), until now.

Sankaranarayanan argued that Anoop Baranwal resolved all inquiries regarding Article 324 . He stated that the only surviving question is whether Parliament can enact a law by removing the basis of a judgement which does not require five judges. Justice Datta reiterated that this was the first instance where a law on ECI appointments was under challenge. Bhushan responded that it would be “unworkable” if every law challenged for violating Article 14 was referred to a larger bench. Sankaranarayanan added that the law was a normal statute, questioning where the constitutional interpretation lay and asking what specific question the Union had framed that required five judges. The petitioners also suggested that the Union repeatedly pushes for a reference to a larger bench in many other cases.

Arguments are expected to continue next week.