NEW DELHI: A Supreme Court two-judge Bench delivered a split verdict on whether petitions challenging the 2023 law on appointment of CEC and Election Commissioners should be referred to a Constitution Bench.
Justice Dipankar Datta rejected the government’s prayer to refer it, while Justice SC Sharma disagreed and backed referring it.
The 2023 Act is under challenge for replacing the Chief Justice of India (CJI) with a Cabinet Minister on the selection panel which appoints Election Commissioners.
Justice Datta rejected the government’s request for reference. He 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.
A Bench of Justices Dipankar Datta and Satish Chandra Sharma had reserved its decision on the demand for reference on July 30.
Justice Datta rejected the government’s request for reference. He 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.
In view of the difference in opinion, the Bench 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.
Justice Datta observed that it was not enough for the Election Commission of India (ECI) to be independent. It must also appear to be independent, the judge said.
He said that 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.
“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.
During the hearing of the case, Solicitor General Tushar Mehta had argued that the Supreme Court in Anoop Baranwal had merely filled the legislative vacuum. Once a law was enacted, the legislative wisdom should prevail over the temporary judicial verdict, he said.
The Court had lamented the failure of successive governments in India to pass a law to ensure the independent functioning of the Election Commission of India (ECI). It had also observed that two members on the panel selecting Election Commissioners are on the side of the government and only one member remains on the other side.
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