New Delhi: The Supreme Court, on Wednesday, delivered a split verdict on the Centre’s plea to refer the petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a larger bench.
Under the 2023 Act, the Chief Justice of India (CJI) has been replaced with a Union Cabinet Minister in the selection panel that appoints Election Commissioners. The Centre had requested the Court to refer the matter to a larger bench under Article 145(3) of the Constitution.
The bench of Justice Dipankar Datta and Justice Satish Chandra Sharma had heard the matter and reserved its decision on July 30.
In the judgement, Justice Datta rejected the government’s request for reference, and went on to deliver a prima facie opinion on the challenge to the 2023 Act.
“We heard these petitions for over 5 days, speaking in one voice would have served the voice of institutional cohesion. Unfortunately, we are divided in our opinion. It is a foundational principle of the constitutional scheme that rulers are bound by law and not above it,” Justice Datta ruled.
Justice Sharma disagreed with the observations made by Justice Datta. He said that a substantial question of law was involved in the matter which must be decided by a larger bench, as reported by Bar and Bench.
The bench has now ordered that the matter be placed before the Chief Justice of India to consider whether a Constitution Bench must be formed to decide the issue.
It was not enough for the Election Commission of India (ECI) to be independent, Justice Datta observed. It must appear to be independent as well, he said.
The minister on the selection panel nominated by the Prime Minister cannot be expected to defy his own nominator, as the collective responsibility doctrine would preclude him from opposing the Prime Minister, Justice Datta further said.
“It is far-fetched to expect that a minister who is part of Cabinet of Ministers would adopt a stand disagreeing with leader or government. Inclusion of cabinet ministers fails to provide an independent counterweight that a neutral selector would,” Justice Datta said.
Under the 2023 Act, the panel to appoint the Chief Election Commissioner and other Election Commissioners comprises the Prime Minister, the Leader of Opposition and a Union Cabinet Minister.
The petitions challenging the law contend that it violates the constitutional requirement of an independent Election Commission by excluding the Chief Justice of India from the selection process.
The challenge stems from the Supreme Court’s 2023 Constitution Bench ruling, which had directed that appointments to the Election Commission would be made by a committee comprising the Prime Minister, the Leader of Opposition and the CJI, unless a law is enacted in this regard by the Parliament.
During the hearing of the case, Solicitor General Tushar Mehta had argued that the Supreme Court’s Constitutional Bench had merely filled the legislative vacuum. Once a law was enacted, the legislative wisdom should prevail over the temporary judicial verdict, he said.
During the hearing, the Court had lamented the failure of successive governments to pass a law to ensure the independent functioning of the Election Commission of India (ECI). It had also observed that while two members on the panel selecting Election Commissioners are on the side of the government, only one member remains on the other side.
