CEC Election Commission Panel: Will CJI be in the appointment panel of election commissioners or not? Constitution bench of Supreme Court will hear, opinion divided among judges

The controversy over the selection panel related to the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) has once again taken a major legal and constitutional turn. The Supreme Court has dismissed the petitions challenging the constitutionality of the ‘Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Tenure) Act, 2023’ passed by the Central Government. 5 member Constitution Bench It has been decided to send it to.

A two-judge bench of the apex court, while considering the petitions, found that the legal opinion of the judges is divided on this important democratic issue and it involves deep constitutional questions related to the basic structure of the Constitution and fair elections. The court made it clear that until a larger constitutional bench gives a final verdict on the validity of this law, the question of the constitutionality of this selection process will remain open.

During the hearing, differences of opinion emerged among the judges of the division bench over legislative power and interpretation of previous decisions of the judiciary:

• One approach (legislative supremacy of Parliament): According to this view, Article 324(2) of the Constitution clearly states that the appointment of Election Commissioners shall be subject to any law made by the Parliament. When Parliament has duly passed the law, it is the jurisdiction of the legislature to decide the composition of the selection panel and the judiciary should refrain from interfering in it.

• Second view (autonomy of the institution and Anup Baranwal decision): The second view believes that in March 2023, the Constitution Bench of 5 judges (Anup Baranwal vs. Union of India) had included the CJI in the panel considering fair elections as the cornerstone of democracy. The removal of the CJI by the government and the inclusion of one of its own Union Cabinet ministers establishes complete dominance of the executive with a majority of 2:1, which affects the impartiality and institutional independence of the Election Commission.

Due to lack of uniformity of opinion and the precedent of the previous decision of 5 judges in the Anup Baranwal case, the matter was formally referred to the Chief Justice so that he could constitute a new Constitution bench of 5 judges.

In March 2023, the then 5-judge Constitution bench of the Supreme Court had ruled that unless Parliament made a new law, the appointment of election commissioners would be on the recommendation of a three-member committee, which included:

1. Prime Minister (President) of India

2. Leader of the Opposition in the Lok Sabha (or leader of the largest opposition party)

3. Chief Justice of India (CJI)

However, in December 2023, both houses of Parliament passed the new law. In this new law the format of the selection committee was changed:

• Prime Minister (President) of India

• Leader of Opposition in Lok Sabha

• A Union Cabinet Minister nominated by the Prime Minister

In this reshuffle, the Chief Justice of India (CJI) was completely removed from the committee and replaced by a Union Minister. This provision was challenged in the Supreme Court by Association for Democratic Reforms (ADR), Dr. Jaya Thakur and other petitioners, terming it unconstitutional.

This historic case has seen heated legal arguments between the two sides:

Now the Chief Justice of the country (CJI) will notify a special constitution bench of 5 senior judges to hear this case. The Constitution Bench will mainly review these three major constitutional questions:

1. Does the 2023 Act made by Parliament violate the basic structure of the Constitution and the autonomy of the Election Commission?

2. Is excluding the Chief Justice from the selection committee and creating a panel with a majority of the executive arbitrary and a violation of Article 14?

3. Can the directions given earlier by a 5-judge Constitution bench be changed in this way through the legislative process?

Until the final decision of the Constitution Bench comes, this debate will continue with full intensity in the legal and political fraternity of the country regarding the independence of the Election Commission and its selection process.