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

J Datta: if an earlier decision has conclusively decided and it applies then we will immediately dismiss the Article 32 petition. If we issue notice that means we are satisfied that there is no conclusive authority.

J Datta: we would like to hear you on the merits.

Mehta: AGI has already done it.

J Datta: we will refer if we have to only but after hearing you on the merits. If it has to be referred then all Article 32 petitions should go before 5 judge bench. Why should it be place before a two judgement?

AGI: If the substantial questions have arisen for the first time and there is no conclusive authority then the court will ordinary refer

J Datta: Pradeep Chandra Parija case judgment that the only situation when reference can directly be made by 2 to 5 is when 145 (3) is attracted. can we read this as fettering our power to decide?

Mehta: I am not saying Your lord ships are prevented. My point is a substantial question of law is involved relating to interpretation of the constitution and therefore we may consider whether it should be referred or not.

Mehta sites judgement to support his request for reference to a larger bench.

J Datta: these are decisions which say when can it be said that a substantial question of law is involved or not. We are accepting that here it is a substantial question of law. You show us whenever a substantial question of law is involved a 2 judge bench has no other option but to refer.

Mehta: I am not on the merits of the case. I am only on my request for a reference.

J Datta: address us on the merits too. Assume that we are not planning to refer it.

it took 8 years for Anoop Baranwal to be decided. There is a matter coming of from 1997 in the Calcutta high court. HC had delivered the opinion. Thousands of farmers are suffering in West Bengal. After 28 years reference has not been decided

Mehta: my point is the moment shift say that because there is two versus one your lord chips and necessarily expressing a potential lack of faith...

J Datta: not lack of faith. Election commissioner has to be an independent person. Should that committee not consists of persons... Should there not be a show of fairness? We are not saying that fairness is not been achieved by this committee. Just like justice is not only to be done it has to be shown to be done we are on the second part.