Bhushan: the question has been settled authoritatively. There is no question which can be referred to the constitution bench otherwise it would mean anytime a question of law arises in an Article 32 it will have to be referred which will make the whole system completely unworkable.

Bhushan: Rule 38 of the Supreme Court Rules is essentially reproducing article 145. It includes only such question of law which is not been decided.

The question as to whether the dominant power of selecting election commissioners can be with the government by any law has been settled not just an Anoop Baranwal but also in Central organisation of railway officers which said that even the power to select an arbitration panel if it is given to one of the parties it cannot be allowed. Same in the Madras Bar Association judgement

J Datta: why would the court write so many paragraphs and not say that this is the way the law has to be?

Farasat: the court has said that the law has to be non executive dominance. How that is reached is up to the parliament. There can be N number of solutions to this. On the petitioners 'side we have given 3 or 4 suggestions

Farasat: Non executive dominance in The selection panel for the CEC and ECs was held to be a constitutional mandate as part of article 324. There can be executive presence but not executive dominance.

J Datta: if the constitution bench intended that on the basis of reasoning provided here then why did it stop at saying that?

Farasat: the court can never say that a law has to be of a particular type.

J Datta: What is the finding on the prayers?

Farasat: it said that non executive dominance is a requirement of article 324 for a selection committee. That is part of the ratio of Anoop Baranwal. The direction of inclusion of CJI as one of the members was the relief granted till the parliament makes a law

J Datta: Why did the Anoop Baranwal go to a larger bench?

Farasat: the two judge bench opined that the matter would require interpretation of article 324 of the Constitution of India for an authoritative pronouncement.

Senior Advocate Shadan Farasat: is it substantial in the sense that it is an important question? Yes. But is it substantial in the sense that it is a constitutional question that is undecided? No.

J Datta: here the question is whether section 7 of the impeune that has to be held ultra vires. Where is this concluded authority? This requires consideration.

Hansaria: there are many cases in which by smaller benches legislations which are tested for the first time are struck down.

Hansaria: if your lord ships have to read article 145(3) and order 38 Rule 1 then every petition has to go before the five judge bench. Then it can never be heard.

Bench: you have to see which portion is binding and which is not. The direction regarding the selection panel till the parliament makes a law is binding which cannot be violated. The other observations are in the nature of guiding principles as to why the chief justice should be included.

Hansaria: This law has made the same thing which was the scenario prevailing earlier that the president was to decide on the advice of the Prime Minister and his council of ministers. Now it is the PM with a minister chosen by him and the LOP who decides. The scenario which was there before the case and post this impugned Act has not changed. If it has not change the ratio of Anoop baranwal will apply squarely.