The Supreme Court split on Wednesday over whether challenges to the 2023 CEC appointment law need a five-judge Constitution Bench
Justices Dipankar Datta and Satish Chandra Sharma differed on the procedural issue after hearing the matter for over five days
The petitions by ADR, Congress leader Jaya Thakur and others challenge the exclusion of the Chief Justice of India from the selection panel
The Supreme Court on Wednesday split on whether challenges to the 2023 law on appointing the Chief Election Commissioner and Election Commissioners must go to a five-judge Constitution Bench, leaving the issue for further judicial consideration. The law matters because it governs appointments to the Election Commission, whose independence is central to free and fair elections.
Under the 2023 Act, the selection panel comprises the Prime Minister, a Union cabinet minister and the leader of the opposition in the Lok Sabha. The petitions challenge the exclusion of the Chief Justice of India from that panel and argue that the change weakens institutional independence.
The two-judge bench differed on whether the matter required a larger bench. The split means the court must take up the procedural question again before it can finally decide the law’s validity.
Bench Split Explained
The bench comprised Justices Dipankar Datta and Satish Chandra Sharma. Datta said the perception that "judges appoint judges" is a myth and held there was no need to refer the case to a Constitution Bench. In his view, a two-judge bench can examine the validity of the law.
Datta also delivered the split formally. "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.
Sharma took the opposite view. He held that the issue should go to a five-judge bench. According to Bar and Bench, the two-judge bench ultimately directed that the matter be placed before the Chief Justice of India for constituting a Constitution Bench, in order to avoid delay.
Petitions And Claims
The challenge comes from the Association for Democratic Reforms (ADR), Congress leader Jaya Thakur and others. They have questioned the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The petitioners argue that removing the Chief Justice of India from the selection panel weakens the guarantee of free and fair elections, which they contend is part of the Constitution’s basic structure. They have also alleged that the law compromises the independence of the Election Commission of India.
Their objection goes beyond procedure. They have argued that the law gives the government greater control over appointments and could allow it to choose a "yes man". The present law provides for appointments by the President on the recommendation of a committee comprising the Prime Minister, the leader of opposition and a Union cabinet minister nominated by the Prime Minister.
Constitutional Context
The court had signalled its concerns earlier. Last month, the Supreme Court underscored the need for an independent and impartial process for selecting the chief election commissioner and election commissioners. It said the Election Commission must not only act independently but must also be seen to act independently.
That hearing also focused on Parliament’s design of the panel. The bench questioned why Parliament chose not to include the Chief Justice of India in the selection process. It noted that the Chief Justice is part of the selection panels for the CBI director and the Lokpal, even though the posts of CEC and ECs are among the most important in a democracy.
The wider constitutional setting is Article 324(5), under which Parliament can make a law on the conditions of service of election commissioners. The Supreme Court’s 2023 judgment had noted that no such law on CEC and EC appointments had been enacted since Independence. It then issued directions for a selection committee on the lines of the panels for the CBI director and the Chief Vigilance Commissioner, while also acknowledging Parliament’s power to legislate.
Centre's Argument
The Centre argued that the case raises a larger constitutional question. Attorney General R Venkataramani and Solicitor General Tushar Mehta submitted during earlier arguments that substantial questions of law on interpreting the Constitution arise in the matter.
On that basis, they argued that Article 145(3) requires the case to be heard by a bench of at least five judges. The court had reserved judgment in July on that procedural issue before delivering Wednesday’s split verdict.
Mehta also defended the law's structure during arguments. He argued that the court could not begin with an assumption that the Prime Minister would act against democratic principles.
