SC split over CEC appointment; 5-judge bench to decide

New Delhi: The Supreme Court on Wednesday delivered a split opinion on whether petitions challenging the 2023 law governing appointments of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be referred to a five-judge Constitution Bench.

A bench of Justices Dipankar Datta and Satish Chandra Sharma differed on the Centre’s request to refer the matter to a larger bench. Justice Datta rejected the request, while Justice Sharma held that substantial constitutional questions were involved and favoured consideration by a larger bench. Despite their differing opinions, both judges agreed that the matter should be placed before Chief Justice of India Surya Kant on the administrative side for constitution of a bench of appropriate strength for an authoritative adjudication. The bench also requested the CJI to consider setting up a permanent five-judge bench to deal with constitutional matters.

The petitions challenge the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The law provides for a selection committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet minister nominated by the Prime Minister, replacing the CJI on the panel.

Justice Datta observed that ensuring free and fair elections required the Election Commission of India not only to be independent but also to be perceived as acting independently. He questioned whether a Cabinet minister nominated by the Prime Minister could provide an independent counterweight in the three-member selection committee. The controversy stems from a March 2023 Constitution Bench ruling which had prescribed, until Parliament enacted a law, a selection committee comprising the Prime Minister, Leader of Opposition and CJI for appointments to the Election Commission. Parliament subsequently enacted the new law in December 2023.

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