Is EC appointment law void solely because selection panel is executive heavy? Justice SC Sharma refers issue to larger bench

Whether parliament was justified in omitting a neutral member from the panel appointing Election Commissioners is an important question arising for the first time before the Supreme Court, Justice Satish Chandra Sharma observed on Wednesday [Dr. Jaya Thakur & Ors. v. Union of India & Ors.].

In his separate opinion favouring the Centre’s stance that the matter be referred to a five-judge Constitution Bench, Justice Sharma held that the issues concerning parliament’s law-making powers under Article 324(2) of the Constitution raises a substantial question of law that could not be decided by a two-judge Bench.

Justice Dipankar Datta, who delivered a non-concurring opinion, had strongly rejected Solicitor General Tushar Mehta’s comparison between the executive’s role in the Election Commission selection process and the judicial Collegium system.

Justice Datta had described the phrase “Judges appointing Judges” as a myth, noting that the executive exercises decisive control over judicial appointments and that the judiciary is left “playing second fiddle”. He held that the Supreme Court’s judgment in Anoop Baranwal had already established the need to insulate the Election Commission from exclusive executive control, making a reference to a larger Bench unnecessary.

Justice Sharma, however, offered a different reading of the Solicitor General’s submissions. He clarified that, in his understanding, the Centre was neither challenging the Collegium system nor seeking to reopen the debate over its functioning.

According to Justice Sharma, the Solicitor General had invoked the doctrine of separation of powers to argue that if judicial independence requires the exclusion of outsiders from the Collegium, a corresponding degree of constitutional independence must also be recognised for the Executive.

Therefore, Justice Sharma framed the question before the Court differently - whether rules framed under Article 324 could be declared invalid merely because they did not include an outsider or resulted in executive dominance.

In his view, this raised an unprecedented constitutional question attracting Article 145(3), which requires substantial questions of constitutional interpretation to be heard by a Bench of at least five judges.

Justice Sharma added that the 2023 ruling in Anoop Baranwal v. Union of India had merely provided an ad hoc, interim arrangement to fill a legislative vacuum.

"No doubt, to the extent law has been declared under Article 141 is to be applied but whether or not Parliament was justified in not including a neutral selector in the selection committee is an important question arising for the first time before this Court. Since, it is a substantial question of law as to interpretation of the Constitution, which has not been dealt with in any precedent, the plain language of Article 145(3) read with Order 38 of the Supreme Court Rules does not leave any room for a decision on such question finally by the present combination," Justice Sharma held.

Rejecting the petitioners' argument that the Union government's plea for a reference was a delay tactic, Justice Sharma observed that whenever the validity of a statute is questioned on constitutional grounds that have not been pronounced upon earlier, a reference under Article 145(3) is mandatory.

Justice Sharma also rejected the argument that the 2023 Act impermissibly overruled Anoop Baranwal, pointing out that the earlier judgment had explicitly left it to the parliament to enact a law.

"Had it not been an interim arrangement, the consequence could have been otherwise... Fair and free elections being a part of the basic structure has been acknowledged in the precedents relied on and no Court can or would, possibly, doubt it now. But whether the said Act fails the test of free and fair elections has to be independently examined," Justice Sharma concluded.

Citing the institutional delay in resolving references, both Justice Sharma and Justice Datta noted in their joint order that references remaining unresolved for decades - such as Anoop Baranwal taking 8 years and Jai Bir Singh taking 24 years - cause institutional embarrassment.

Hence, the bench bypassed a 3-judge bench to prevent further procedural delays and directed that the papers be placed before the Chief Justice of India to consider constituting a Constitution Bench to decide the validity of Sections 6, 7, and 8 of the 2023 Act.

[Read Judgment]