The Supreme Court on Wednesday delivered differing opinions on whether petitions challenging the law governing the appointment of India’s top election officials should be considered by a larger bench.
The case concerns the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The law changed the composition of the panel responsible for selecting the Chief Election Commissioner (CEC) and Election Commissioners (ECs), removing the Chief Justice of India from the selection process.
A bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma heard the matter.
Two judges take different views
Justice Datta, who headed the bench, did not agree with the Centre’s request to send the constitutional challenge directly to a five-judge Constitution Bench.
The Centre had argued that the petitions involve important constitutional questions requiring consideration by a larger bench.
Justice Sharma took a different position from Justice Datta on the issue, resulting in a split opinion between the two judges.
Despite the disagreement, both judges agreed that the matter should now be placed before Chief Justice of India Surya Kant on the administrative side so that a bench of appropriate strength can be constituted to hear the constitutional challenge.
Pleas challenge 2023 law
The petitions before the Supreme Court question the constitutional validity of the 2023 legislation governing the appointment, service conditions and tenure of the CEC and ECs.
Under the present law, the selection committee includes the Prime Minister, a Union Cabinet minister nominated by the Prime Minister and the Leader of the Opposition in the Lok Sabha.
The Chief Justice of India is not part of this panel.
The composition of the appointment mechanism has become a key issue in the petitions because it differs from the framework laid down by the Supreme Court in an earlier judgment.
What did the 2023 law change?
Before the 2023 legislation, the Supreme Court had addressed the absence of a parliamentary law governing the appointment process.
In a March 2023 judgment, a five-judge Constitution Bench had directed that the President appoint the CEC and ECs based on the recommendation of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.
The court’s arrangement was intended to operate until Parliament enacted a law dealing with the appointment process.
Parliament subsequently passed the 2023 Act, replacing that arrangement with a statutory selection mechanism that does not include the CJI.
Court suggests permanent Constitution Bench
During Wednesday’s proceedings, the bench also asked the CJI to consider whether a permanent five-judge bench could be created to deal with matters involving substantial constitutional questions.
The suggestion came as the court dealt with the question of which bench should hear the challenge to the election commissioners’ appointment law.
For now, the immediate next step is for the matter to be placed before CJI Surya Kant, who will decide the appropriate bench composition on the administrative side.
The split opinion means the petitions challenging the 2023 law remain pending and will require consideration by a bench of appropriate strength before the constitutional questions can be finally adjudicated.
