Supreme Court Refers CEC, EC Appointment Law Challenge to Five-Judge Bench

The Supreme Court on Wednesday referred a batch of petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, to a five-judge Constitution Bench. The referral followed a split opinion between the two judges hearing the matter.

The 2023 law governs the appointment of the Chief Election Commissioner and Election Commissioners, and notably excludes the Chief Justice of India from the selection panel. The petitioners have challenged this exclusion, arguing it raises questions about the independence of the poll body.

Justice Dipankar Datta, who headed the bench, declined to accept the Centre's contention that the petitions raise seminal questions of constitutional importance warranting reference to a larger bench. Justice Satish Chandra Sharma, the other judge on the bench, disagreed, holding that the issues raised were significant enough to require extended adjudication.

Despite their differing views on the referral, both judges agreed that the matter should be placed before Chief Justice of India Surya Kant on the administrative side so that a bench of appropriate strength can be constituted for an effective and authoritative ruling.

The bench also asked the CJI to explore the possibility of setting up a permanent five-judge bench to decide constitutional issues in the future.

The development traces back to a landmark verdict on March 2, 2023, when a five-judge Constitution bench ruled that appointments to the posts of CEC and ECs would be made by the President on the advice of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. The 2023 Act altered that arrangement by removing the CJI from the selection panel, a change that has drawn concerns about potential executive influence over the electoral body.