After split verdict, SC refers law on EC appointment to larger bench

SC: Constitution bench should deal with case to prevent delay

NEW DELHI: On a day when Election Commission found itself under the scanner, a two-judge bench of Supreme Court gave a split verdict on whether the issue of validity of the law on appointment of CEC/ECs be referred to a constitution bench, but later agreed to refer the case to a larger bench for the sake of early adjudication of the contentious issue.Validity of several provisions of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 has been challenged on the ground that the law gives the executive "overwhelming" power to appoint its nominee as election commissioner, as the selection panel composed of the PM, a Cabinet minister and the leader of the opposition is designed to give govt a 2:1 majority.

The petitioners contended that EC's independence would be compromised in this process.The 2023 law was framed to replace an SC verdict which had directed that selection be done by a committee of the PM, CJI and leader of the opposition until Parliament determined the composition by passing a law. "Speaking in one voice would have better served institutional cohesion. Unfortunately, the court is divided in its opinion," a bench of Justices Dipankar Datta and S C Sharma said.

The hearing in the case went on for five days and at the fag end of proceedings, the Centre had sought referral of the case to a constitution bench.

SC: Constitution bench should deal with case to prevent delay

Noting that appointment of CEC/ECs was being litigated for last 11 years in SC after a petition was filed in 2015, the bench decided that the case should not be referred to a three-judge bench, which is the normal procedure, but to a constitution bench to settle the issue once and for all.

It reasoned that a decision by a three-judge bench would be of little worth and only delay adjudication of the significant issue(s) that these writ petitions raise."Thus, we direct that the papers be placed before the CJI for considering the desirability of constituting a constitution bench of such number of judges to decide the question of vires of Sec 7 and the other provisions of Act," the bench said.The bench expressed hope that the case would be given priority as the issues raised were of "foundational importance to the democratic fabric of the country and its citizenry"."Petitioners seem to be justified in expressing their anxiety that references to five-judge benches remain unresolved for years. If statistics are any guide, none can say with any reasonable degree of certainty when long-pending references will get resolved. Undisputedly, this is an area of grave concern and the inordinate delay in resolution of the references is itself a source of institutional embarrassment which all stakeholders ought to strive to avoid.

Self-introspection, indeed, is required," it said."We, thus, take this opportunity of requesting the Chief Justice to also explore the necessity of constituting a permanent five-judge bench to decide pure constitutional issues. This is not something novel that we are saying. It has been opined time and again by responsible citizens and we simply endorse their opinion. Given that resolving constitutional issues is the primary task of judges of this court, that must remain its core priority.

Pendency of references for far too long, any period between five and 20 years or more, does not reflect well on the institution. It is time that the institution addresses the issue with the urgency and promptitude it deserves," the bench said.