ECI Appointments Act, 2023 | Day 5: Supreme Court reserves decision on reference to larger bench

Union: Constitutional questions require larger Bench

Attorney General R. Venkataramani, appearing for the Union, submitted that Anoop Baranwal gave rise to constitutional questions that should be authoritatively settled by a Constitution Bench. Taking the Court through the judgement, Venkataramani argued that the petitioners’ case effectively suggested that Parliament lacked the authority to enact a law different from the interim arrangement prescribed by the Court. Venkataramani submitted that allegations of executive interference or loss of institutional independence must be established on facts. “If it is the case that there is an abuse of office or a surrender of the independence of the office then that will have to be questioned on facts,” he argued.

Justice Datta noted that Parliament had retained the CJI on the selection committees for offices of the CBI Director and the Lokpal. He observed that the ECI occupied one of the highest constitutional offices and asked why Parliament had departed from that model while framing the 2023 Act. Venkatramani responded that Parliament could not be “gagged” merely because another institutional model was possible. He argued that the existence of an alternative mechanism did not render Parliament’s legislative choice unconstitutional.

Mehta: Courts cannot presume executive will act in bad faith

Solicitor General Tushar Mehta argued that the interim arrangement was not a permanent constitutional limitation on Parliament’s power under Article 324. Several questions, according to him, required consideration by a larger Bench: whether Parliament’s law could be invalidated merely because it did not include an “outsider” such as the CJI on the selection committee; whether legislative power under Article 324 is subject to implied constitutional limitations; whether courts can presume abuse of power or mala fides by constitutional functionaries while testing legislation; and whether a statute may be invalidated simply because the Court considers another institutional design preferable.

Mehta argued that the Court could not begin with the assumption that the PM and the executive would misuse their majority on the selection committee. He submitted that doubting the committee’s composition effectively questioned Parliament’s legislative wisdom and the constitutional trust in elected institutions. Justice Datta clarified that the Court’s concern was not whether the PM could be trusted. “The Election Commissioner has to be an independent person. Should there not be a show of fairness? We are not saying that fairness has not been achieved by this committee. Just like justice is not only to be done, it has to be shown to be done,” he observed.

Bench examines scope of Article 145(3)

Justice Datta asked Mehta to identify any precedent holding that a two-judge Bench lacked the authority to decide such matters once a substantial constitutional question arose. Referring to Article 32 proceedings, he observed that the Union’s submission would mean that virtually every constitutional challenge would have to be heard by a five-judge Bench.

The Court was also taken through Article 145 and Order XXXVIII of the Supreme Court Rules, 2013 governing Constitution Bench references. Mehta maintained that the matter should nonetheless be referred. Justice Datta, however, remarked that while the Union may have no difficulty waiting for a Constitution Bench, “on the judicial side there may be difficulty.”

Petitioners: Anoop Baranwal settles the issue

Advocate Prashant Bhushan argued that Anoop Baranwal had already settled that executive dominance in ECI appointments undermines democracy, free and fair elections and the ECI’s independence. When Justice Sharma observed that the validity of the present legislation was being tested for the first time, Bhushan responded that every statute is challenged for the first time. The relevant constitutional principle, he submitted, had already been authoritatively decided.

Senior Advocate Vijay Hansaria pointed out that the Union’s counter-affidavit had never raised a reference to a larger bench and only sought it after the Court listed the matter for the 28th time. Previously, the petitioners had claimed that the Union government sought a reference to a larger bench to delay the final decision. He argued that the executive cannot exercise dominant control over appointments to the ECI because it routinely adjudicates disputes involving the government. Hansaria further submitted that the Act substantially restored the pre-Anoop Baranwal position where appointments were effectively made on the aid and advice of the Council of Ministers. Since executive dominance remained unchanged, he argued, the ratio of Anoop Baranwal applied squarely.

Senior Advocate Shadan Farasat argued that while the case involved an important constitutional issue, it did not involve an undecided one. He submitted that non-executive dominance was a constitutional requirement under Article 324. Parliament remained free to design the appointment mechanism, he submitted, but not to depart from that underlying constitutional principle.

Order reserved

Towards the close of the hearing, Justice Datta observed that the Court would have to determine which parts of Anoop Baranwal constituted binding precedent. Senior Advocate Gopal Sankaranarayanan maintained that none of the issues framed by the Union involved any fresh interpretation of the Constitution.

The Bench reserved judgement on whether the petitions should be referred to a Constitution Bench and permitted all parties to file written submissions on the issue.