After split verdict, SC refers law on EC appointment to larger bench; decision comes amid row over EC functioning
A two-judge Supreme Court bench delivered a split verdict on whether petitions challenging the constitutional validity of the law governing appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be referred to a Constitution Bench.
One judge held that the petitions did not raise a question requiring a larger bench; the other held that they raised a substantial, previously unsettled question of constitutional interpretation warranting reference.
In view of this difference of opinion, the bench directed that the matter be placed before the Chief Justice of India to consider constituting a Constitution Bench of appropriate strength.
The petitions under consideration challenge the law that altered the composition of the committee that selects the CEC and ECs.
Anoop Baranwal v. Union of India (2023) — The Original Selection Committee Mandate
In Anoop Baranwal v. Union of India, decided on 2 March 2023, a five-judge Constitution Bench of the Supreme Court held that, in the absence of a parliamentary law under Article 324(2), the CEC and ECs would be appointed by the President on the advice of a three-member committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party where no recognised LoP exists), and the Chief Justice of India. This arrangement was directed to operate only "until a law is made by Parliament."
Key Details
- Decided by a five-judge bench (Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar).
- The Court held that Article 324's silence on the appointment mechanism, left entirely to executive discretion for over seven decades, was constitutionally untenable and undermined the Election Commission's independence.
- The interim committee (PM, CJI, LoP) was explicitly a stop-gap arrangement pending parliamentary legislation, not a permanent constitutional mandate.
The current dispute concerns whether the law Parliament subsequently enacted complies with the spirit of this judgment, since it removed the CJI from the committee.
The CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023
Enacted by Parliament after Anoop Baranwal, this Act lays down a statutory selection process for the CEC and ECs under the rule-making power recognised by Article 324(2), replacing the interim judicially-devised committee.
Key Details
- Received Presidential assent on 29 December 2023.
- Under Section 7, the Selection Committee comprises the Prime Minister (Chairperson), the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister — the Chief Justice of India is not a member.
- A Search Committee headed by the Cabinet Secretary, with two members not below the rank of Secretary to the Government of India, shortlists a panel of five names for the Selection Committee's consideration; the Selection Committee may also consider names outside this panel.
- The Act provides that the validity of the Selection Committee's recommendations is not affected merely by a vacancy or defect in the Committee's constitution.
The petitions before the Supreme Court challenge precisely this substitution of the CJI with a PM-nominated Cabinet Minister, arguing it dilutes the independence-of-institution safeguard laid down in Anoop Baranwal; the split verdict concerns whether this challenge merits Constitution Bench examination.
Article 324 and the Constitutional Design of the Election Commission
Article 324 vests the "superintendence, direction and control" of elections in the Election Commission of India and provides the constitutional basis for its composition and appointment process.
Key Details
- Article 324(2) states that the CEC and other ECs shall be appointed by the President, "subject to the provisions of any law made in that behalf by Parliament" — the enabling clause both the 2023 Act and the Anoop Baranwal interim direction rest on.
- Before the 2023 Act, no such parliamentary law existed since 1950, and appointments were made purely on executive advice — the gap the Supreme Court flagged in Anoop Baranwal.
- Article 324(5) protects the CEC from removal except in the manner of a Supreme Court judge (via Article 124), while other ECs can be removed only on the CEC's recommendation — a safeguard distinct from, and unaffected by, the appointment-committee dispute.
The present reference concerns only the pre-appointment selection mechanism under Article 324(2); the security-of-tenure protections under Article 324(5) remain undisturbed.
Reference to a Larger Bench: The Article 145(3) Mechanism
When a Supreme Court bench is split, or considers that a case involves a substantial question of law as to the interpretation of the Constitution, the matter is referred for constitution of a larger bench.
Key Details
- Article 145(3) mandates a minimum of five judges to decide any case involving a substantial question of law as to the interpretation of the Constitution — the constitutional basis for "Constitution Bench" references.
- The Chief Justice of India, as master of the roster, decides whether and how to constitute such a bench following a reference.
- A split verdict between two judges of a bench does not itself decide the matter; it necessitates listing before a differently or more broadly constituted bench.
Because the current bench recorded divergent views on whether the challenge to the 2023 Act raises a substantial constitutional question, the matter now goes to the Chief Justice of India for a Constitution Bench determination rather than being resolved by the two-judge bench itself.
- Anoop Baranwal v. Union of India decided: 2 March 2023, by a 5-judge bench
- Interim selection committee (per Anoop Baranwal): PM, CJI, Leader of Opposition
- CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023: assented 29 December 2023
- Statutory Selection Committee (Section 7 of the 2023 Act): PM, Union Cabinet Minister (PM-nominated), Leader of Opposition — no CJI
- Search Committee: headed by Cabinet Secretary + 2 members of Secretary rank; shortlists panel of 5 names
- Minimum judges for a Constitution Bench on constitutional interpretation: 5 (Article 145(3))