SC Reserves Order on Referring Election Commissioner Law Challenge to Larger Bench: ‘Show of Fairness’

Supreme Court Reserves Judgment on Referral of Election Commissioner Law Challenge

The Supreme Court on Thursday reserved its decision on whether to refer petitions challenging the validity of the 2023 law on appointing the Chief Election Commissioner and Election Commissioners to a larger five‑judge bench. A bench of Justices Dipankar Datta and Satish Chandra Sharma heard arguments on the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which removed the Chief Justice of India from the selection panel.

During the hearing, the court observed that the current panel comprises two members aligned with the government—the Prime Minister and a Union Cabinet Minister—and only one from the opposition, the Leader of Opposition. Justice Datta remarked, “An election commissioner is supposed to be an independent person. Should the committee not have any show of fairness? We are not saying fairness is not being achieved. But it has to be shown.”

Solicitor General Tushar Mehta, representing the Centre, argued that a constitutional court cannot presume the Prime Minister would act against democratic values, and that if such trust is lacking, the same logic should apply to Cabinet selection. The court reserved its order on the preliminary question of whether the writ petitions should be placed before a bench of five judges, before examining the law’s constitutionality.

Why the Court Is Questioning the 2:1 Selection Panel

The 2:1 Composition and ‘Show of Fairness’

The current appointment panel—Prime Minister, Leader of Opposition, and a Union Cabinet Minister—effectively gives the executive a 2:1 majority. The bench’s remarks highlight a structural concern: even if individuals act in good faith, the process may appear to lack balance. This aligns with the principle that institutional independence must be visible, not merely assumed. The court stopped short of declaring unfairness but signaled that the composition itself undermines the perception of an impartial Election Commission.

The Clash with Anoop Baranwal

The 2023 law directly contrasts with the Supreme Court’s 2023 Constitution Bench ruling in Anoop Baranwal v. Union of India, which had directed that appointments to the Election Commission be made by a committee of the Prime Minister, Leader of Opposition, and the Chief Justice of India—at least until Parliament enacted a law. By excluding the CJI, the government’s law essentially overruled that judicial direction. Petitioners argue that the Prime Minister, along with his nominee Cabinet Minister, will always be the “deciding factor,” diluting the safeguards the court had envisioned.

What a Larger Bench Could Do

If the matter is referred to a five‑judge bench, the court will get an opportunity to settle the constitutional tension between the executive’s legislative power and the judiciary’s interpretation of free and fair electoral machinery. A larger bench could uphold or strike down the 2023 law, or read down its provisions to restore a balance closer to the Anoop Baranwal model. The reservation of judgment on the reference itself suggests that the current bench sees the question as substantial enough for reconsideration by a larger constitution bench, keeping the legal uncertainty alive for months.

What Lies Ahead for India’s Election Watchdog

• The court’s reservation of judgment on the reference means no immediate change to the selection panel; the existing 2:1 composition remains in force for any future appointments.
• If the matter is referred to a larger bench, a final verdict could take months, prolonging legal ambiguity over the Election Commission’s independence.
• Political parties may use the delay to press for a legislative amendment restoring the CJI’s role, but the government’s parliamentary majority makes this unlikely without external pressure.
• The two Election Commissioners appointed in 2024 under the challenged law remain in office, so upcoming state or national elections could be overseen by officials whose appointment process remains under a cloud of perceived partiality.