SC delivers split verdict, sends ECI appointments law challenge to larger bench
Challenges to the Appointment of Election Commissioners Act, 2023Judges: Dipankar Datta J, S.C. Sharma J
In an afternoon session, a Bench of Justices Dipankar Datta and S.C. Sharma delivered a split verdict on whether challenges to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 should be considered by a larger Bench.
The Court had heard brief submissions from the petitioners challenging the law and the Union government on whether the issue required a Constitution Bench reference. The Bench had reserved its decision on 30 July. The Act was enacted by Parliament after the Supreme Court’s Constitution Bench judgement in Anoop Baranwal v Union of India (2023) directed that appointments be made on the advice of a committee comprising the Prime Minister, Leader of Opposition (LoP) and the Chief Justice of India (CJI) until Parliament enacted a law. The Act replaced the CJI with a Union Cabinet Minister nominated by the Prime Minister on the committee that selects the Election Commissioners. The plea that the Act’s challenge be heard by a Constitution Bench was made by the Union, opposed by petitioners as a delaying tactic.
Justice Datta rejected the Union’s plea for a reference, while Justice Sharma held that the challenge raised a substantial question of law. Despite the differences in opinion, both judges directed that the papers be placed before the CJI for consideration of a Constitution Bench of appropriate strength.
Justice Datta: ECI must not only be independent, but appear to be independent
Justice Datta held that the inclusion of the CJI in Anoop Baranwal was not a permanent requirement but a temporary measure until a legislation is enacted. “If the Constitution Bench intended for the inclusion of Chief Justice in the selection committee to be binding it would have said so,” he said.
On the inclusion of a Union Cabinet Minister under the Act, Justice Datta questioned whether they could provide the independent counterweight contemplated in Anoop Baranwal. He added that it was “far-fetched” to expect a Cabinet Minister to disagree with the Prime Minister who nominated them. The third member consequently was “largely ornamental”.
The Attorney General had conceded that the Prime Minister’s nominee would “probably” not take a different position if the Prime Minister and Leader of Opposition disagreed. Justice Datta said this possibility was enough to colour public perception. The ECI, he said, must not only be independent, but “appear to be independent”.
Justice Datta: ‘Judges appoint judges’ is a myth
Justice Datta then challenged the Union’s argument comparing the Collegium system for appointing judges with the ECI selection process. He observed that the claim “judges appoint judges” was a “myth” fed by “vested interests” as it overlooked the consultations involved in judicial appointments, including the role of the executive at the Centre and in the states, intelligence agencies and other authorities in vetting credentials. “Perhaps none other than the government knows better how the Collegium system works,” he said.
He added that the sanctity of a Collegium resolution was lost each time due to selective implementation by the executive—approving the majority while withholding at least one recommendation. The Collegium, he observed, had continued to proceed, seemingly to avoid a head-on conflict and keep the institution running. He questioned how long this could continue if selective implementation acquired the character of an accepted practice.
Referring to Ambedkar’s vision of an independent judiciary, Justice Datta said the present situation “appears blind and under serious threat”. He questioned why, after the judiciary had been relegated to “playing second fiddle” to the executive in judicial appointments, there was still a demand to induct an outsider at the ECI selection stage. The executive’s comparison between the collegium system and the ECI selection process was “disingenuous and evasive”, Justice Datta said.
Justice Datta rejects reference, Justice Sharma disagrees
Justice Datta said that the ECI must be insulated from executive control and that the constitutional principles at issue were already settled in Anoop Baranwal. He noted that a larger bench reference could not be justified by “re-packaging” a settled constitutional principle in a new factual and legislative setting. Justice Datta rejected the Union’s plea and said his opinion was confined to the reference question and was prima facie in nature. He also said there was no constitutional bar to the present Bench hearing the petitions.
Justice Sharma took a different view. He held that the challenge raised a substantial question of law warranting consideration by a larger Constitution Bench.
Justice Datta said the difference of opinion between the two judges would ordinarily call for a three-judge Bench. However, in this instance, the Bench unanimously directed that the matter be placed before the CJI to set up a larger bench. The Bench acknowledged that a larger bench reference leads to a delay in resolution of the issue, with Justice Datta adding that there is no possible way to determine when the matter would be taken up.
He asked the CJI to consider a permanent five-judge Bench for constitutional matters. Both judges had earlier sat on the nine-judge Constitution Bench in Jaibir Singh. Referring to the time taken by Constitution Bench references, Justice Datta said, “Undisputedly this is an area of great concern. Self introspection indeed is required.”