CEC, EC Appointment Act Challenged; The Supreme Court forwards the petition to a five-judge Bench

The Supreme Court on Wednesday referred petitions challenging the law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) to a five-judge constitution bench. The move came after a two-judge bench issued split opinions on whether lawsuits challenging the 2023 law raised questions of constitutional significance requiring review by a larger panel.

The Supreme Court on Wednesday issued divided opinions on whether a batch of challenges challenging the validity of the 2023 law that excludes the Chief Justice of India from the panel for selecting the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be referred to a larger bench.

Justice Dipankar Datta, who headed the bench, refused to accept the Centre’s contention that the petitions raised fundamental questions of constitutional importance and should be referred to a five-judge constitution bench.

Justice Satish Chandra Sharma, another judge on the bench, disagreed with Justice Datta’s views.

However, both the judges agreed that the matter be referred to CJI Surya Kant on the administrative side to constitute a bench of adequate strength for effective and authoritative decision.

The bench also asked the CJI to explore the possibility of setting up a permanent five-member commission to decide on constitutional issues.

The bench was hearing pleas challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Tenure) Act, 2023, which excludes the Chief Justice of India (CJI) from the selection board for appointment of Election Commissioners and Chief Election Commissioners.

On March 2023, in a landmark verdict aimed at insulating the appointment of CECs and ECs from executive interference, the five-member constitution ruled that their appointments 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 CJI.