Minister in CEC-EC selection panel fails ‘perception test’, says Justice Datta in split verdict
A two-judge Supreme Court bench delivered a 1:1 split verdict while hearing petitions that challenge the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023
One judge on the bench held that including a Union Cabinet Minister on the three-member Selection Committee fails the "perception test" of institutional independence, since a minister bound by collective responsibility cannot be expected to take a position contrary to the Prime Minister
Because the two judges differed on whether the matter warrants a larger bench, the case has been referred to a Constitution Bench for authoritative determination
The core constitutional question — whether a law can validly replace a neutral, non-executive member on the Selection Committee with a Cabinet Minister — remains open pending the larger-bench hearing
Anoop Baranwal v. Union of India (2023) — The Original Selection Mechanism
A five-judge Constitution Bench (comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar) ruled on 2 March 2023 that, in the absence of a parliamentary law under Article 324(2), the seven-decade practice of the President appointing the CEC and Election Commissioners effectively on the advice of the Prime Minister alone lacked an adequate independent check.
Key Details
- As an interim arrangement — to operate "until Parliament makes a law" — the Court directed that the CEC and ECs be selected by a three-member committee: the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha
- The Court invoked the precedent of Vineet Narain v. Union of India (1998), where it had similarly filled a legislative vacuum by prescribing an appointment mechanism (for the CBI Director) until Parliament legislated
- This interim mechanism was superseded once Parliament enacted a law later that year
The current litigation concerns whether Parliament's 2023 law, which replaced the CJI in this three-member committee, meets the constitutional standard the Court itself set in this case.
CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023
Enacted in December 2023, this law is the first parliamentary legislation under Article 324(2) governing the appointment of the Chief Election Commissioner and Election Commissioners — a field left unregulated by statute since 1950.
Key Details
- Section 7 of the Act constitutes a Selection Committee of three members: the Prime Minister (Chairperson), the Leader of the Opposition in the Lok Sabha, and one Union Cabinet Minister nominated by the Prime Minister
- This structure replaced the Chief Justice of India — who had been part of the interim three-member panel prescribed in Anoop Baranwal — with a Cabinet Minister
- The substitution of the CJI with a Cabinet Minister is the central ground of constitutional challenge in the pending petitions
The split verdict concerns exactly this substitution — whether a Selection Committee with two members effectively aligned with the executive (the PM and a minister nominated by the PM) against one opposition member provides an adequate "independent counterweight."
Article 324(2) — Constitutional Basis for EC Appointments
Article 324(2) provides that the CEC and other Election Commissioners shall be appointed by the President, subject to the provisions of any law made by Parliament in that behalf.
Key Details
- For nearly seven decades (1950 to 2023), Parliament made no such law, and appointments were made by the President on the advice of the Council of Ministers, in practice the Prime Minister
- The 2023 Act is the first law enacted under this enabling clause
- Article 324(1) separately vests "superintendence, direction and control" of elections in the Election Commission
The pending Constitution Bench reference will determine whether a law enacted under Article 324(2) can validly structure the Selection Committee without a judicial or otherwise non-executive member.
Article 75(3) — Collective Responsibility and the "Perception Test"
Article 75(3) states that the Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha). This constitutional principle underpinned the reasoning that a Cabinet Minister, being bound to act in concert with the Prime Minister on matters of government policy, cannot function as an independent selector on the panel.
Key Details
- Collective responsibility means the Council of Ministers stands or falls together before the Lok Sabha; a minister who publicly disagrees with the Prime Minister on a Cabinet-level matter is expected to resign rather than dissent
- The "perception test" is a standard the Court has applied in past independence-of-institutions cases: even the reasonable appearance of executive dominance, not just proven bias, can undermine public confidence in a body's autonomy
- This differs from a "bias test," which requires actual or demonstrable partiality
The reasoning that a minister "cannot be expected to defy" the Prime Minister flows directly from Article 75(3)'s collective-responsibility framework, forming the constitutional basis for questioning the minister's inclusion on the Selection Committee.
Reference to a Larger Bench Under Article 145(3)
When a two-judge bench cannot agree, or when a case raises a substantial question of law as to the interpretation of the Constitution, it is referred to a larger bench — in constitutional matters, a Constitution Bench.
Key Details
- Article 145(3) mandates a minimum of five judges for any case involving a substantial question of law as to the interpretation of the Constitution, or for hearing a Presidential reference under Article 143
- A split (non-unanimous) verdict on a question of this nature is one established route by which a matter reaches a Constitution Bench
- The eventual Constitution Bench ruling will authoritatively settle whether the 2023 Act's Selection Committee structure is constitutionally valid
The 1:1 split is procedurally significant because it triggers referral under this constitutional mechanism, meaning the substantive question about the CEC-EC appointment process remains undecided until a larger bench rules.
- Anoop Baranwal v. Union of India: decided 2 March 2023, by a five-judge Constitution Bench
- Interim selection panel directed in Anoop Baranwal: Prime Minister, Chief Justice of India, Leader of Opposition (Lok Sabha)
- CEC and Other ECs Act, 2023: enacted December 2023; Section 7 Selection Committee = PM (Chair) + LoP + one Union Cabinet Minister nominated by PM
- Constitutional basis for EC appointments: Article 324(2)
- Constitutional basis for collective responsibility: Article 75(3), Council of Ministers responsible to the Lok Sabha
- Minimum bench strength for constitutional interpretation cases: five judges, under Article 145(3)
- Outcome of the current hearing: case referred to a Constitution Bench following a 1:1 split verdict