Supreme Court Split on Referring Poll Panel Appointment Case to Larger Bench

The Supreme Court on Tuesday delivered a split opinion on whether petitions challenging a 2023 law that keeps the Chief Justice of India out of the committee that selects the Chief Election Commissioner and Election Commissioners should be heard by a larger bench.

The two-judge bench of Justice Dipankar Datta and Justice Satish Chandra Sharma differed after hearing the matter over five days. Justice Datta declined the Centre's argument that the petitions raised questions of constitutional importance warranting a five-judge Constitution bench, while Justice Sharma disagreed with that view.

Both judges, however, agreed that the issue should be placed before Chief Justice of India Surya Kant on the administrative side. The Chief Justice will decide whether a Constitution bench is to be constituted and whether such a bench could be made permanent for deciding constitutional questions.

"Had we delivered a unanimous verdict, it would have been in the interest of institutional solidarity. Unfortunately, there is a difference of opinion. Due to this difference, I had to write a more detailed order," Justice Datta said.

In his observations, Justice Datta stressed that the independence of the Election Commission of India rests on its freedom from executive control. "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," he said.

He illustrated the point with a cricket analogy, noting that if the team batting selects the umpire, questions about impartiality are bound to arise, and the umpire would always be suspected of loyalty to that side. The process of appointing election commissioners, he said, should be free of such doubts.

Justice Datta also said the case required a perspective that considers the possibility that the court's opinion could remain relevant long after the immediate dispute ends. He added that it was important to dispel a misconception that has been allowed to persist, describing the phrase "judges appoint judges" as a myth. Vested interests, he said, have propagated this perception through motivated narratives, often drawing support from certain controversial judgments on judicial appointments.

The petitions concern the constitutional validity of the 2023 law excluding the Chief Justice of India from the selection panel. On March 2, 2023, a five-judge Constitution bench had ruled that appointments of the 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 split verdict came on a day when a newspaper report said two election commissioners had objected on record to several decisions taken by the poll body allegedly without their knowledge. The Election Commission said in a statement that all decisions taken by it in the past year were unanimous and that differing views and observations are a normal part of deliberation in any institution.