Tryst with the Constitution: Justice Datta’s opinion reflects precedent and pragmatism

Last month, the Supreme Court delivered a split verdict on the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, specifically on the question of whether the matter should be heard by a Constitution Bench.

Justice Dipankar Datta held that the matter did not warrant a reference, whereas Justice Satish Chandra Sharma took the contrary view. The matter has now been placed before the Chief Justice to consider the “desirability of constituting a Constitution Bench”.

Of the two opinions, Justice Datta’s adheres more closely to precedent while also adopting a pragmatic approach to the requirements of Article 145(3).

The petitions before the Court primarily challenged Section 7 of the 2023 Act, which provides for a Selection Committee to recommend appointments to the offices of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs). The Committee comprises the Prime Minister (PM), the Leader of Opposition in the Lok Sabha (LoP) and a Union Cabinet Minister nominated by the Prime Minister. The petitioners primarily argued that this composition ensured executive dominance in the Selection Committee, contrary to the decision in Anoop Baranwal v. Union of India (2023). The judgment records that the Attorney General initially opposed the petitions on merits, but subsequently argued that they must be heard by a bench of at least five judges, rather than the present two-judge bench, in accordance with Article 145(3).

At the outset, two clarifications would be helpful: the Court’s judgment in Anoop Baranwal and the requirements of Article 145(3).

First, Article 324(2) of the Constitution provides that the Election Commission (ECI) shall consist of the CEC and such number of other ECs, if any, as the President may from time to time fix. Their appointments are to be made by the President, “subject to the provisions of any law made in that behalf by Parliament”. However, for more than seven decades, Parliament enacted no such law and appointments were consequently made by the executive. This process was challenged before the Supreme Court in Anoop Baranwal on the ground that it undermined the independence of the ECI.

After examining the Constituent Assembly debates, the constitutional scheme and precedents, the Court held that the independence of the ECI from executive interference was central to its constitutional design. It also noted that although Article 324(2) expressly contemplated a law enacted by Parliament to govern appointments, no such law had been made. The Court characterised this as a vacuum and directed that until Parliament enacted such a law, appointments would be made on the recommendation of a committee comprising the PM, the LoP and the Chief Justice of India. Importantly, it held that such an arrangement was temporary and would be “subject to any law to be made by Parliament".

Second, Article 145(3) requires a minimum of five judges to decide any case “involving a substantial question of law as to the interpretation of this Constitution”. The phrase makes it clear that not every case involving a constitutional provision or challenge to a legislation requires a Constitution Bench. Years of precedent bear this out: key constitutional issues concerning Section 66A, timelines for gubernatorial assent to bills, transgender rights, gender-discriminatory legislation and sexual harassment at the workplace have all been decided by smaller benches. Further, the question must also be necessary to decide the case and, where it has already been authoritatively answered, its application to a subsequent case does not raise a fresh “substantial question of law”.

The principal question before the Court was whether Anoop Baranwal had already settled the constitutional principles necessary to decide the challenge to the 2023 Act. The Union drew a distinction between Articles 141 and 142, arguing that while the law declared by the Supreme Court under the former constitutes binding precedent, directions issued under the latter to do complete justice are confined to the circumstances in which they are issued. On this basis, it argued that the Selection Committee constituted in Anoop Baranwal was merely an interim arrangement under Article 142, intended to fill the legislative vacuum until Parliament enacted a law. Once the 2023 Act was enacted, that arrangement ceased to operate and a new question arose: whether Parliament could adopt a different appointment mechanism and whether it could be invalidated for departing from the arrangement prescribed in Anoop Baranwal.

The first part of the argument is non-debatable, as Anoop Baranwal itself made clear that the Committee constituted by the Court would operate only until Parliament enacted a law. Parliament was, therefore, not bound to reproduce that arrangement. However, the Union's argument conflated this temporary direction with the ratio of the judgment. Applying the familiar test that the ratio constitutes those propositions without which the decision could not have been reached or, put differently, whether reversing a proposition would alter the final outcome, the bench in Anoop Baranwal could not have constituted the Selection Committee without first holding that the independence of the ECI required appointments to be insulated from executive interference. That proposition remained binding under Article 141 even after the interim directions under Article 142 had ceased to operate.

There was, therefore, no new constitutional question requiring determination. Anoop Baranwal had already settled the relevant principle: appointments to the ECI must be insulated from executive interference. The question was simply whether the new Selection Committee satisfied that standard. This required the application of the ratio in Anoop Baranwal and not a fresh interpretation of the Constitution.

Justice Datta applied this understanding, holding that while the 2023 Act added “a new element to the canvas”, it did not necessarily raise a new question of constitutional interpretation. Justice Sharma took a different view. He held that since the validity of the new selection mechanism had not been considered in Anoop Baranwal, it raised a substantial question of law requiring consideration by a Constitution Bench. More broadly, he also held that where the validity of a statute is challenged on a ground not previously considered, the matter ought to be referred to a Constitution Bench. He observed:

“My view on this contention is this. Old or new, whatever be the character of the statute, if validity of such statute or a part thereof is questioned on valid grounds as failing the constitutional test and if this Court has previously not had the occasion to deal with and pronounce on such grounds, a reference would seem to be in order.”

There are two difficulties with Justice Sharma’s approach. First, taken to its logical conclusion, it would require a Constitution Bench whenever the validity of a statute is challenged on grounds not previously considered by the Court. This departs from the Court’s practice, where important constitutional challenges, including to the validity of statutory provisions, have routinely been decided by two and three-judge benches. More importantly, such an approach could exacerbate existing delays, as Constitution Benches are often not constituted promptly. In fact, Justices Datta and Sharma themselves noted in their common order that some Constitution Bench references had remained pending for 20 years or more.

This approach also has a historical parallel, going back to the 42nd Amendment, which introduced Article 144A, requiring at least seven judges to determine the constitutional validity of a statute. The Supreme Court criticised this requirement in Misrilal Jain (1977), observing that it imposed an “unnecessary burden” on a Court already facing large arrears by requiring seven judges to assemble irrespective of the importance of the constitutional question. The Court urged Parliament to reconsider the provision, which was subsequently repealed by the 43rd Amendment. Justice Sharma’s interpretation would move towards a similar arrangement, despite its rejection by both the Court and Parliament.

Second, such an approach could make it easier to reopen questions already settled by the Court. If the application of an existing constitutional principle to a new statute is itself treated as a substantial question requiring a reference, it could provide another avenue for reconsidering established constitutional principles. Justice Datta's distinction between applying an existing precedent and deciding a new constitutional question is important for this reason as well.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.