The Supreme Court on Wednesday has delivered a split verdict on whether the challenges to the provisions of the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be referred to a larger Constitution Bench.
Justice Dipankar Datta rejected the plea for reference to a larger Bench, while Justice S.C. Sharma held that the petitions raise a substantial question of constitutional interpretation warranting consideration by a Constitution Bench.
Though Justice Datta and Justice Sharma have differed on the question of reference, the matter will not be sent to a three-judge Bench merely to consider the question of reference to a larger Bench again. In the final directions, the Bench directed that the papers be placed before the Chief Justice of India to consider the constitution of a Constitution Bench of such number of judges as may be appropriate to decide the constitutional validity of Section 7 and the other provisions of the 2023 Act.
Justice Sharma explained that sending the matter to a three-judge Bench to decide which of the two opinions was correct would serve little purpose and would further delay the adjudication of the constitutional questions. He said:
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“A decision by a three-judge bench to resolve which of the two opinions is correct would be of little worth and only delay adjudication of the significant issues that these writ petitions raise. Thus, we direct that the papers be placed before the Honourable the CJI for considering the desirability of constituting a Constitution Bench of such number of judges to decide the question of validity of Section 7 and the other provisions of the 2023 Act.”
Justice Dipankar Datta Rejects Reference To Larger Bench
Justice Datta held that the constitutional principles concerning the independence of the Election Commission of India (ECI) and free and fair elections were already settled by existing precedent, and that the present challenge essentially required those principles to be applied to the 2023 legislation.
Justice Datta examined the Supreme Court’s earlier decision in Anoop Baranwal, under which a committee comprising the Prime Minister, the Chief Justice of India and the Leader of Opposition had been prescribed as an interim arrangement for appointments to the ECI in the absence of legislation.
He held that the arrangement was pro tem and was not a binding constitutional prescription that Parliament was required to reproduce when it enacted legislation.
At the same time, Justice Datta noted that Anoop Baranwal had clearly established the importance of ECI independence and the need to protect the electoral process from exclusive executive control.
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“The detailed reasoning in Anoop Paranwal explains why independence demands a neutral appointment mechanism, but the very language the Constitution Bench used makes it explicit that it was transient in nature and not a binding norm that Parliament was constitutionally obliged to follow. If indeed the Constitution Bench intended that inclusion of the CJI in the Selection Committee were binding on the Parliament, it would have said so.”
Justice Datta then considered whether the appointment mechanism under the 2023 Act could withstand the constitutional requirements of independence under Article 324, Article 14 and the basic structure doctrine.
He noted that the 2023 Act provides for a three-member selection committee comprising the Prime Minister, the Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. The challenge, as recorded by Justice Datta, was that the inclusion of the Minister gives the executive an effective two-to-one advantage and raises concerns regarding the institutional neutrality and perceived independence of the appointment process.
Justice Datta acknowledged that the Election Commission must not only be independent but must also be perceived as independent. However, he held that this concern did not, by itself, create an unsettled constitutional question warranting reference to a larger bench. According to him, the Court was required to apply constitutional standards on the independence of the ECI that had already been settled in earlier decisions to test the validity of the 2023 Act. He distinguished such an exercise from a case involving a genuinely unsettled question of constitutional interpretation, which alone would justify a larger-bench reference.
Justice Datta also noted that the independence of the ECI is part of the basic structure, but said the existing jurisprudence did not leave an unsettled substantial question concerning the constitutional standard governing that independence.
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“The issue does not hinge upon whether the independence of the ECI is a part of basic structure or not. It plainly is. But does the existing jurisprudence leave amorphous a substantial question concerning the constitutional standard governing such independence?”
Justice Datta ultimately held that existing precedent had already established that free and fair elections are a basic feature of the Constitution and that the ECI must be insulated from exclusive executive control in the appointment of the CEC and ECs. According to him, what remained was to apply those principles to the 2023 Act.
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“Precedents having laid down in unmistakable terms that free and fair elections are a basic feature of the Constitution and that the ECI should be insulated from exclusive executive control in relation to appointments for the CEC and the ECs, what remains is no more than the application of the settled principles of law to the facts of the case and a decision on the challenge as laid.”
Justice Datta therefore rejected the prayer for reference to a larger Bench and directed that the writ petitions and intervention applications be placed for hearing on a date to be notified, subject to an order from the CJI.
Justice S.C. Sharma Allows Reference To Constitution Bench
Justice Sharma disagreed with Justice Datta’s conclusion and said he was unable to accept the reasoning that the issues did not warrant consideration by a Constitution Bench. He focused on the Supreme Court’s earlier decision in Anoop Baranwal, noting that the arrangement prescribed in that case was made in the context of a constitutional vacuum and in the absence of legislation governing the appointment process.
According to Justice Sharma, while the decision in Anoop Baranwal is binding to the extent required under Article 141, whether Parliament was justified in subsequently enacting a law without including a neutral selector was an important question arising before the Court for the first time. Justice Sharma further clarified that referring the matter would not amount to reopening the settled principle that free and fair elections form part of the Constitution’s basic structure.He said:
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“No doubt, to the extent law has been declared under Article 141, it is to be applied but whether or not Parliament was justified in not including a neutral selector in the selection committee is an important question arising for the first time before this Court.
Fair and free elections being a part of the basic structure has to be acknowledged in the precedence relied on and no court can or would possibly doubt it but whether the said Act fails the test of free and fair elections has to be independently examined.”
He consequently directed that the petitions be placed before the CJI for an appropriate order constituting a Constitution Bench to examine the constitutional validity of Sections 6, 7 and 8 of the 2023 Act.
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“In my opinion, all the petitions in accordance with Article 143 of the Constitution and Order 38 of the Supreme Court Rules may now be placed before Honourable the Chief Justice of India for an appropriate order of a Constitution Bench to adjudicate the constitutional validity of Sections 6, 7 and 8 of the said Act.”
Bench Suggests Permanent Five-Judge Bench For Constitutional Issues
The Court raised the issue of delays in deciding constitutional references and referred to the time taken by earlier references to reach larger Benches. The bench noted that the reference arising from Anoop Baranwal had taken several years before being decided and referred to another seven-judge to nine-judge reference, which had also remained pending for years. Justice Datta said:
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“The petitioners seem to be justified in expressing their anxiety that references to five-judge benches remain unresolved for years together. Undisputedly, this is an area of grave concern and the inordinate delay in resolution of the references is itself a source of institutional embarrassment which all stakeholders ought to strive to avoid. Self-introspection indeed is required.”
Against this background, the Bench requested the CJI to consider establishing a permanent five-judge Bench to decide pure constitutional issues. The court said constitutional questions were central to the Supreme Court’s work and that prolonged delays in their resolution required attention.
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“We thus take this opportunity of requesting the Honourable CJI to also explore the necessity of constituting a permanent five-judge bench to decide pure constitutional issues. Given that resolving constitutional issues is the primary task of judges of this Court, that must remain its core priority. Tendency of reference for far too long, any period between five and twenty years or more, does not reflect well on the institution. It is time that the institution addresses the issue with the urgency and promptitude it deserves.”
The matter will now be placed before the CJI for appropriate orders on the constitution of a larger Bench, with Bench specifically proposing consideration of a permanent five-judge Bench for pure constitutional questions.