Supreme Court Sends Chief Election Commissioner Appointment Law Challenge to Constitution Bench After 1:1 Split Verdict

Key facts

• The Supreme Court referred the constitutional challenge to the law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners to a Constitution bench after a two-judge bench delivered a 1:1 split verdict on whether the issue should be decided by a larger bench.
• Justices Dipankar Datta and Satish Chandra Sharma differed on the question of reference but agreed the matter should be placed before Chief Justice of India Surya Kant for constitution of the Constitution Bench, holding that sending the disagreement to another three-judge bench would only cause further delay.
• The Chief Election Commissioner and other Election Commissioners Appointment, Conditions of Service and Term of Office Act, 2023, remains in operation, as the Supreme Court has neither struck down nor upheld the appointment mechanism.
• The challenge centres on Section 7 of the 2023 Act, which provides a three-member Selection Committee comprising the Prime Minister as chairperson, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister, while Sections 6 and 82, providing a Search Committee headed by the Law Minister and allowing consideration of persons outside the Search Committee panel, are also challenged.
• The case stems from the Supreme Court's 2023 Constitution bench judgment in Anoop Baranwal v. Union of India, which prescribed an interim selection committee of the Prime Minister, Leader of Opposition and Chief Justice of India until Parliament legislated; the 2023 law replaced the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister.
• Justice Datta, rejecting the Union's plea that the case necessarily required a Constitution Bench, observed that the Election Commission must not only be independent but also appear independent, and that a Prime Minister-nominated Cabinet Minister bound by collective responsibility could not ordinarily provide an independent counterweight, reducing the Leader of Opposition's role to a formality if the two executive members acted together.
• Justice Sharma held the challenge raised a substantial question of law as to the interpretation of the Constitution requiring a Constitution Bench, since no authoritative Supreme Court judgment had examined the constitutional validity of the 2023 Act and Anoop Baranwal had only provided an interim mechanism in a constitutional vacuum.
• The Constitution Bench will decide whether the 2023 Act merely exercises Parliament's legislative power over Election Commission appointments or whether the Selection Committee's composition crosses constitutional limits requiring an independent Election Commission and free and fair elections.
• The judges flagged the prolonged pendency of constitutional references, noting the Anoop Baranwal case originated from a 2015 petition, was referred to a Constitution Bench in 2018 and took another five years to be decided, and requested the CJI to explore establishing a permanent five-judge bench for pure constitutional questions.