Challenge To Election Commissioners' Law: Live Updates From Supreme Court

Hansaria: the executive exclusively or dominantly or mainly cannot have a say in the appointment of the election commissioner. That is the ratio of Anoop Baranwal as this will affect free and fair election. This will affect the independence of the election commission which decides decides the lisbetween the government and the opposition parties.

Hansaria: the propositions that they are raising have already been discussed and laid down in Anoop Baranwal.

Senior Advocate Vijay Hansaria: it was on the 28 hearing that this request regarding reference was first raised.

J Sharma: it was the AGI's first day.

Hansaria: But he appears for Union of India. We argued, it was heard from time to time. After 20th day reply came and even in reply this argument is not taken. This shows that Union of India is aware that it is not required to be referred otherwise the first preliminary submission in a counter affidavit on the first day or the second day would be that it is required to be referred.

Bhushan: Anoop baranwal said that the government itself deciding who is to be appointed the election commissioner is violative of the principle of democracy and free and fair election. Ipso facto this law which says that the government will still dominate the appointment by a majority of 2:1 is also violative.

Bench: we are dealing with the specific statut. whether the parliament conferring the authority on the Prime Minister to select the third member in the committee is violative...this question has not been answered.

Bhushan: the question is whether a law which provides that the people appointing an election commissioner will be dominated essentially by one of the parties who will be in dispute or who will be involved in issues to be decided by the election commission...

Bhushan: every case has something which is being tested for the first time. The question is whether a provision or a system which allows the government to dominate the selection of the election commission violates democracy and free and fair election, and that has been settled.

Advocate Prashant Bhushan: the issue of whether case raises a substantial question of law and has to be referred to 5 judge bench has been decided in a large number of cases saying that if that question of law has already been decided by a constitution when then it need not be referred.

J Sharma: but this law is being tested for the first time.

Mehta: we are fine even if the five judge benche is constituted next week.

J Datta: you may not have any difficulty but on the judicial side there may be difficulty.

Mehta: that may not be a ground not to refer.

Court is taken through Supreme Court Rules: petition under article 32 of the Constitution shall be in writing and shall be heard by a division bench of not less than 5 judges provided that a petition which does not raise the substantial question of law as to the interpretation of the Constitution may be heard and decided by division Court of lesson 5 judges and during vacation by the vacation just sitting singly