Supreme Court reserves order on referring CEC appointment issue to 5-judge bench

The Supreme Court has reserved its order on whether the law governing the appointment of the Chief Election Commissioner and other election commissioners should be heard by a five-judge bench. This decision comes after the Centre objected to a two-judge bench adjudicating on the constitutional interpretation of the appointment process.

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The judgment on the question as to whether the writ petitions need to be referred to a bench of five judges is reserved.

The bench, comprising justices Dipankar Datta and Satish Chandra Sharma, stated that the judgment on referring the writ petitions to a larger bench is reserved. The court is considering petitions that challenge the validity of the Chief Election Commissioner and Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. A key ground for the challenge is the exclusion of the Chief Justice of India (CJI) from the Selection Committee, a departure from the principles laid down in a previous five-judge Constitution bench decision in the Anoop Baranwal case.

During the proceedings, Attorney General R Venkataramani and Solicitor General Tushar Mehta argued that the case involves substantial questions of law concerning the interpretation of the Constitution. They invoked Article 145(3) of the Constitution, which mandates that matters involving such substantial questions must be heard by a bench of at least five judges.

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substantial questions of law

Petitioners, including Congress leader Jaya Thakur and the NGO Association for Democratic Rights, contend that the 2023 Act is unconstitutional and arbitrary, violating Article 14 and undermining the free and fair elections guaranteed under Article 324. They argued that the Anoop Baranwal judgment had already settled the core legal questions, and the current law's compliance with those principles is the remaining issue. The bench, however, questioned the Centre on why the Parliament excluded the CJI from the selection panel when the CJI is part of the selection process for the CBI Director.

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The question arising before us is whether Section 7 is ultra vires the Constitution. Where is the concluded authority that this is a decided question.