Who should choose the country’s election watchdog? The 2023 law gives the task to a panel of the Prime Minister, a Union Minister and the Leader of Opposition, an arrangement the petitioners say hands the executive a two-to-one majority. The Supreme Court has now sent the challenge to a Constitution Bench, with Justice Dipankar Datta prima facie doubting whether the process is truly independent, observing that the Election Commission must not only be independent but appear to be so.
New Delhi: The Supreme Court has referred to a Constitution Bench the petitions challenging the 2023 law that governs the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) [Dr. Jaya Thakur v. Union of India and connected cases].
A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma directed that the matter be placed before the Chief Justice of India for the constitution of a Constitution Bench of appropriate strength. Notably, the two judges differed on whether a reference was warranted, but agreed to place the matter before the CJI to avoid further delay, observing that routing the question through a three-judge bench first, to decide whether a Constitution Bench reference was needed, would only prolong the proceedings.
The split on the reference
Justice Datta was of the view that the Union’s demand for a larger-bench reference was unwarranted; Justice Sharma held that the issue had to be authoritatively determined by a Constitution Bench in terms of Article 145(3) of the Constitution, which requires substantial questions of constitutional interpretation to be decided by a bench of at least five judges. Despite the difference of opinion on the need for a reference, the Bench ultimately directed that the matter go to the CJI for the constitution of a Constitution Bench.
Justice Datta’s prima facie doubts
Justice Datta prima facie questioned whether the 2023 Act provides an independent selection process, observing that the appointment mechanism, by a committee comprising the Prime Minister, a Union Minister and the Leader of Opposition, appeared to confer a veto on the Executive and to fail the test of the perception of independence. “Free and fair elections depend on a truly independent ECI. It is not enough for the ECI to be independent; it must appear to be independent. The member nominated by the Prime Minister cannot be expected to defy the Prime Minister,” he observed.
He further doubted whether the inclusion of a Cabinet Minister in the committee provided an independent counterweight to the executive, remarking that it “fails to provide an independent counterweight that a neutral selector would” and “becomes largely ornamental”. Justice Datta also observed that the principle laid down by the five-judge bench in Anoop Baranwal v. Union of India (2023), that the appointment of Election Commissioners must be through a process free from executive influence, had not been unsettled, even though the specific mechanism suggested in that judgment, a committee of the PM, the CJI and the Leader of Opposition, had been meant only as an interim arrangement until Parliament enacted a law.
The rival contentions
The petitions challenge Section 7 of the Act, under which the Selection Committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition. The petitioners, represented by Senior Advocates Vijay Hansaria, Gopal Sankaranarayanan and Shadan Farasat and Advocate Prashant Bhushan, among others, contend that the arrangement gives the executive a two-to-one majority and undermines the independence of the Election Commission; they argue that while Parliament was free to enact a law, it could not create a mechanism allowing the executive to dominate the appointment process, relying on Anoop Baranwal, Articles 14 and 19, and the basic structure doctrine.
The Union, represented by Attorney General R. Venkataramani and Solicitor General Tushar Mehta, defended the Act, contending that Article 324 leaves it to Parliament to prescribe the appointment mechanism, and that the Anoop Baranwal judgment created only an interim arrangement to fill a legislative vacuum and could not impose binding restrictions on Parliament’s legislative choices once a law was enacted. The Solicitor General argued that the Court could not begin with an assumption that the Prime Minister or the executive would act against democratic principles merely because the executive had a numerical majority on the committee, and the Centre urged a reference to a Constitution Bench under Article 145(3), contending that the matter raised substantial questions on the interpretation of Article 324 and Parliament’s legislative power.
Why it matters
The case goes to the heart of the independence of the body that conducts India’s elections. In Anoop Baranwal, a Constitution Bench held that the appointment of Election Commissioners should be insulated from executive dominance, and, as an interim measure, prescribed a selection panel of the Prime Minister, the Leader of Opposition and the Chief Justice of India, until Parliament legislated. The 2023 Act replaced the CJI on that panel with a Union Minister, which the petitioners say tilts the balance decisively towards the executive; the question the Constitution Bench must resolve is whether, and how far, the constitutional principle of an independent Election Commission constrains Parliament’s choice of appointment mechanism.
Justice Datta’s observations, though only prima facie and not a ruling, frame the core of the controversy in the language of perception: an institution charged with holding free and fair elections must not only be independent in fact but be seen to be independent, and a selection panel on which the executive holds a majority, he suggested, struggles to meet that standard. The competing view, pressed by the Union, is one of legislative competence and the separation of powers, that Article 324 commits the design of the mechanism to Parliament, and that courts should not presume bad faith on the part of the executive or convert an interim judicial arrangement into a permanent constitutional command.
Nothing has been decided on the validity of the Act. The two-judge Bench has only referred the matter, and has itself differed on whether a reference was even necessary; the substantive questions, the reach of Anoop Baranwal, the scope of Article 324, and whether the 2023 mechanism passes constitutional muster, now await authoritative determination by a Constitution Bench to be constituted by the CJI. Until then, the law stands, and the appointment mechanism it prescribes remains in force.
Case Title: Dr. Jaya Thakur v. Union of India and connected cases [W.P.(C) No. 14/2024 and connected matters]
Bench: Justice Dipankar Datta and Justice Satish Chandra Sharma, Supreme Court of India
Appearances: Senior Advocates Vijay Hansaria, Gopal Sankaranarayanan and Shadan Farasat, and Advocate Prashant Bhushan, among others, for the petitioners; Attorney General R. Venkataramani and Solicitor General Tushar Mehta for the Union.
Status: Petitions referred to a Constitution Bench, to be constituted by the CJI. Judges differed on the need for a reference; validity of the 2023 CEC/EC Appointments Act undecided.