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.

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...