Even though a two-judge bench of Justice Dipankar Datta and Justice Satish Chandra Sharma disagreed on whether the matter should be referred, they ultimately ordered that the matter be placed before the CJI for the constitution of a Constitution Bench of appropriate strength, to avoid further delay. The becnh observed that referring the issue to a 3-judge bench to examine whether the Constitution Bench reference is warranted will unnecessarily delay the proceedings.

While Justice Datta opined the Union's demand for larger bench reference was unwarranted, Justice Sharma held otherwise.

Justice Datta doubts whether 2023 Act ensures an independent process

Justice Datta prima facie questioned whether the 2023 law governing the appointment of the Chief Election Commissioner and Election Commissioners provides an independent selection process.

Justice Datta observed that the 2023 Act, prima facie, appeared to confer a veto on the Executive, since the appointment process, by a committee comprising the PM, Union Minister and the Leader of Opposition, fails the "perception trust."

Justice Datta observed that a nominee of the Prime Minister cannot be expected to vote against the Prime Minister.

"Free and fair elections depend on a truly independent ECI. It is not enough for the ECI to be independent; it must appear to be independent. The member nominated by the Prime Minister cannot be expected to defy the Prime Minister," Justice Datta observed.

He further questioned whether the inclusion of Cabinet Ministers in the selection committee provided an independent counterweight to the executive.

"Inclusion of Cabinet Ministers fails to provide an independent counterweight that a neutral selector would. It becomes largely ornamental," Justice Datta observed.

Justice Datta observed that the law laid down by the 5-judge bench in Anoop Baranwal(2023) that the appointment of Election Commissioners must be through a process free from executive influence has not been unsettled, even though the mechanism proposed by the Anoop Baranwal judgment - to select ECs by a committee comprising the PM, the CJI and the Lop - was only meant to be an interim arrangement till the Parliament enacted a law.

Justice Sharma however observed that the issue has to be authoritatively determined by a Constitution Bench in terms of Article 145(3) of the Constitution.

Even though there was a difference of opinion on the issue whether the matter should be heard by a Constitution Bench, the two-judge bench ultimately directed that the matter be placed before the CJI to constitute a Constitution Bench, in order to avoid delay.

The Court had in July reserved its judgment on whether the issue of constitutional validity of the law governing the appointment of the Chief Election Commissioner and Election Commissioners should be referred to a Constitution Bench.

The Court pronounced its judgment in a batch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The petitions challenge the mechanism under which the Chief Election Commissioner (CEC) and Election Commissioners (ECs) are appointed.

Story to be updated.

Background

The pleas challenge Section 7 of the Act, under which the Selection Committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition. The petitioners contend that the arrangement gives the executive a two-to-one majority and undermines the independence of the Election Commission.

The Centre sought a reference to a larger Bench, arguing that the challenge raises substantial questions concerning the interpretation of Article 324 and the scope of Parliament's power to prescribe the appointment mechanism for Election Commissioners.

The Union also argued that the Court needs to authoritatively determine the effect of the Constitution Bench's 2023 judgment in Anoop Baranwal v. Union of India after Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The petitioners opposed the reference, contending that the constitutional principles governing the independence of the Election Commission have already been settled by the Constitution Bench in Anoop Baranwal and that no fresh question of constitutional interpretation arises merely because Parliament subsequently enacted the 2023 Act

On merits, the petitioners relied extensively on the Constitution Bench judgment in Anoop Baranwal v. Union of India. In that case, the Supreme Court had directed that the CEC and ECs be appointed by a committee comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India until Parliament enacted a law on the subject. The petitioners contended that while Parliament was free to enact a law, it could not create a mechanism that allows the executive to dominate the appointment process.

Senior Advocate Vijay Hansaria argued that the issue was not whether the Chief Justice of India must necessarily be part of the Selection Committee, but whether the ruling executive could have control over the appointments.

Senior Advocates Gopal Sankaranarayanan and Shadan Farasat, as well as Advocate Prashant Bhushan, also argued that the constitutional principle of an independent Election Commission recognised in Anoop Baranwal prevents Parliament from adopting a mechanism dominated by the executive. They relied on Articles 14 and 19 and the basic structure doctrine, contending that free and fair elections require an independent Election Commission.

The Union government, represented by Attorney General R Venkataramani and Solicitor General Tushar Mehta, defended the Act. The Centre contended that Article 324 leaves it to Parliament to prescribe the appointment mechanism and the Anoop Baranwal judgment only created an interim arrangement to fill a legislative vacuum.

The Attorney General argued that the Anoop Baranwal judgment could not be treated as imposing binding restrictions on Parliament's legislative choices after Parliament had enacted the 2023 law. The Centre also urged that the petitions be referred to a Constitution Bench under Article 145(3), contending that they raise substantial questions concerning the interpretation of Article 324 and Parliament's legislative power.

The Solicitor General argued that the Court could not begin with an assumption that the Prime Minister or the executive would act against democratic principles merely because the executive has a numerical majority on the Selection Committee.

The Court also examined the scope of the Constitution Bench judgment in Anoop Baranwal.. Justice Datta observed that the Court would have to distinguish between the binding direction in Anoop Baranwal and observations in the judgment explaining why the Chief Justice was included in the interim selection panel.

During the hearings, the Court also questioned the rationale for having a Union Cabinet Minister nominated by the Prime Minister as the third member of the Selection Committee, observing that the Election Commission must not only be independent but also appear to be independent.

Case no. - W.P.(C) No. 14/2024 Diary No. 146 / 2024 and connected cases

Case Title - Dr. Jaya Thakur v. Union of India and connected cases