A bench comprising Justices Dipankar Datta and Satish Chandra Sharma asked the petitioners and the central government to file written submissions on the preliminary question. “We are reserving judgment on the reference. You can provide your written arguments,” the bench said.
The petitions challenge the constitutional validity of the Chief Election Commissioner and Other Election Commissioners Act, 2023. The legislation replaced the Chief Justice of India on the selection committee with a Union Cabinet minister nominated by the prime minister.
The three-member committee now comprises the prime minister, the leader of the opposition in the Lok Sabha and the nominated Cabinet minister. Where the Lok Sabha has no formally recognised leader of the opposition, the leader of its largest opposition party occupies the position.
Petitioners including Jaya Thakur, the Association for Democratic Reforms and Lok Prahari contend that the arrangement gives the executive a two-to-one majority. They argue that this weakens the institutional independence required of the Election Commission, which supervises national and state elections.
The central government sought a larger-bench reference on the ground that the dispute raises substantial questions concerning Article 324 of the Constitution. The provision gives Parliament authority to legislate on appointments to the Election Commission while vesting the conduct and supervision of elections in the constitutional body.
Attorney General R Venkataramani argued that the case requires an authoritative determination of Parliament’s legislative powers. The government maintains that an earlier Constitution Bench judgment created only a temporary appointment mechanism and did not permanently require the Chief Justice to sit on the selection committee.
Solicitor General Tushar Mehta said courts could not presume that the prime minister or other constitutional authorities would act in bad faith. He argued that excluding a judicial representative did not by itself make the statutory process unconstitutional.
The bench said the issue was not based on distrust of the prime minister. Justice Datta instead stressed the importance of visible institutional fairness, observing that election commissioners must be independent and that the appointment process should demonstrate that independence to the public.
The court also questioned whether every case involving a substantial constitutional issue must immediately be transferred to a five-judge bench. Justice Datta observed that such an approach could require numerous petitions filed directly under Article 32 to be placed before Constitution Benches.
The petitioners opposed the proposed reference, saying the governing constitutional principles had already been settled in the Supreme Court’s March 2023 judgment in Anoop Baranwal versus Union of India.
That ruling directed that the chief election commissioner and election commissioners be selected by a committee comprising the prime minister, the leader of the opposition and the Chief Justice. The arrangement was expressly intended to operate until Parliament enacted a law.
Parliament passed the 2023 legislation about nine months later, substituting a Cabinet minister for the Chief Justice. The change prompted allegations that the government had restored executive dominance over appointments despite the concerns identified in the Anoop Baranwal ruling.
Advocate Prashant Bhushan argued that the earlier judgment had established the need to prevent executive control over the selection process. He said the new law retained that control because two of the committee’s three members belonged to the government.
Bhushan maintained that testing a new statute did not automatically create an undecided constitutional question. Accepting the government’s position, he said, could make the constitutional adjudication system unworkable by requiring larger benches whenever legislation faced a fundamental-rights challenge.
Senior advocate Vijay Hansaria said the request for a reference was raised only after extensive hearings. He argued that the statutory arrangement produced substantially the same executive influence that existed before the 2023 judgment.
Senior advocate Shadan Farasat distinguished between an important constitutional dispute and an unresolved question requiring a larger bench. He submitted that the earlier Constitution Bench had already laid down the relevant principle, even though Parliament remained free to design the precise appointment model.
(IPA Service)
