The Supreme Court has directed that a batch of petitions challenging the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 be placed before the Chief Justice of India for considering the constitution of a Constitution Bench.
The Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma delivered separate opinions and differed on the question of whether the challenge should be considered by a larger Bench. The Court, therefore, directed that the matter be placed before the Chief Justice of India for appropriate consideration of a Constitution Bench of five or more Judges.
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The petitions were filed under Article 32 of the Constitution challenging provisions of the 2023 Act on the ground that they were allegedly inconsistent with Article 14 read with Article 324 of the Constitution.
The principal challenge concerns Section 7 of the 2023 Act, which provides for a Selection Committee consisting of: the Prime Minister, as Chairperson; the Leader of Opposition in the House of the People, as a Member; and a Union Cabinet Minister nominated by the Prime Minister, as a Member.
The Act further provides that a vacancy or defect in the constitution of the Selection Committee would not, by itself, invalidate an appointment. The legislation also contains provisions concerning the Search Committee and the procedure to be followed by the Selection Committee.
The challenge consequently raises questions concerning the constitutional framework governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) and the institutional independence of the Election Commission of India.
A central issue before the Supreme Court was the effect of the Constitution Bench judgment in Anoop Baranwal v. Union of India.
The earlier Constitution Bench had examined the appointment process for the CEC and ECs in the absence of legislation enacted by Parliament under Article 324(2). The Court had noted that Article 324(2) expressly contemplated parliamentary legislation governing appointments.
In Anoop Baranwal, the Court had held that the absence of parliamentary legislation had resulted in a constitutional vacuum and had laid down an interim mechanism for appointments until Parliament enacted a law.
Under that interim arrangement, appointments were to be made by the President on the advice of a committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha or the leader of the largest opposition party, and the Chief Justice of India. The Court expressly contemplated that the arrangement would operate until Parliament enacted legislation under Article 324(2).
The 2023 Act subsequently established a statutory Selection Committee that does not include the Chief Justice of India and instead includes a Union Cabinet Minister nominated by the Prime Minister.
The petitioners and supporting intervenors argued that the principal constitutional concern was not necessarily that the Chief Justice of India must be part of the Selection Committee, but that the appointment mechanism under Section 7 allegedly results in executive dominance.
According to the submissions recorded in the judgment, the petitioners relied heavily on Anoop Baranwal and contended that the Election Commission should be insulated from exclusive executive control because of its constitutional role in administering elections. They argued that the present challenge essentially involved applying settled constitutional principles rather than reconsidering the Constitution itself.
The petitioners also objected to the request for reference to a Constitution Bench, pointing out that the plea for reference had emerged after the matter had already been argued substantially before the two-Judge Bench.
They relied on several earlier Supreme Court decisions to contend that the mere fact that a statute raises constitutional questions does not automatically require reference to a Constitution Bench.
The Attorney General for India and the Solicitor General supported the position that the matter involved substantial questions concerning interpretation of the Constitution and should therefore be considered by a Bench of at least five Judges under Article 145(3).
The Union’s submissions included the argument that Anoop Baranwal should not necessarily be treated as having conclusively determined all constitutional questions arising from the 2023 legislation.
The Government’s side also argued that the directions issued in Anoop Baranwal were interim measures intended to operate during the legislative vacuum and were expressly subject to Parliament subsequently enacting a law. According to this argument, once Parliament occupied the field through legislation, the earlier interim mechanism could not automatically be used to invalidate the statutory framework.
The Government further argued that the composition of the Selection Committee, by itself, could not establish bias or institutional unfairness. The submission was that Parliament was constitutionally competent to establish a legislative framework and that the presence of the Prime Minister, a Union Cabinet Minister and the Leader of Opposition should not automatically be treated as demonstrating institutional bias.
In his opinion, Justice Dipankar Datta undertook an extensive examination of Anoop Baranwal and the constitutional history surrounding Article 324.
The opinion records that Article 324(2) contemplates parliamentary legislation regulating the appointment of the CEC and ECs. The earlier Constitution Bench had found that Parliament’s failure to enact such legislation for more than seven decades had created a constitutional vacuum of considerable significance.
Justice Datta’s opinion also examined the constitutional principle of institutional independence and the relationship between the executive, Parliament and constitutional institutions.
The opinion noted that Anoop Baranwal had deliberately adopted a temporary mechanism rather than permanently legislating through judicial directions. It observed that the Constitution Bench had intended Parliament to exercise its legislative authority under Article 324(2).
Although the original petitions challenged the constitutional validity of the 2023 Act, the immediate question before the two-Judge Bench became whether the matter itself required consideration by a larger Constitution Bench.
Article 145(3) provides that the minimum number of Judges required to decide a case involving a substantial question of law as to the interpretation of the Constitution is five.
The Supreme Court Rules similarly contemplate that Article 32 petitions raising substantial constitutional questions are to be heard by a Bench of not less than five Judges.
Justice Satish Chandra Sharma concluded that the petitions should be placed before the Chief Justice of India for constitution of a Constitution Bench to adjudicate the constitutional validity of Sections 7, 6 and 8 of the 2023 Act.
The final order records that the two Judges were unable to arrive at a common view.
Justice Dipankar Datta and Justice Satish Chandra Sharma expressly recorded that the Court was divided in its opinion. Ordinarily, such a difference could lead to reference to a three-Judge Bench. However, the Judges noted that the precise disagreement concerned whether the petitions should themselves be heard by a five-Judge Constitution Bench.
According to the order, sending that limited question to a three-Judge Bench could result in further delay without materially advancing adjudication of the underlying constitutional issues.
The Court therefore directed that the papers be placed before the Chief Justice of India for considering the desirability of constituting a Constitution Bench to decide the question concerning the validity of Section 7 and the other challenged provisions of the 2023 Act.
The Court also addressed concerns raised by the petitioners regarding the time taken to decide constitutional references.
The order specifically referred to Anoop Baranwal, noting that the original Article 32 proceedings had been instituted in 2015, a reference was made in 2018, and the Constitution Bench eventually delivered its judgment after several years.
The Judges also referred to the delay experienced in another constitutional reference and observed that prolonged pendency of references to larger Benches is an institutional concern.
The Court accordingly requested the Chief Justice of India to consider the necessity of a permanent five-Judge Bench for deciding pure constitutional issues, noting that constitutional questions are central to the work of the Supreme Court and that prolonged pendency of references warrants institutional attention.
The Supreme Court has not finally decided the constitutional validity of Section 7 or the other challenged provisions of the 2023 Act in this proceeding.
Instead, because of the difference of opinion between the two Judges concerning the appropriate Bench to hear the constitutional challenge, the matter has been placed before the Chief Justice of India for consideration of a Constitution Bench.
The issues concerning the composition of the Selection Committee, the relationship between the 2023 statutory framework and the principles laid down in Anoop Baranwal, and the constitutional validity of the challenged provisions therefore remain to be adjudicated by the larger Bench, if constituted.
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