The Supreme Court has referred six petitions challenging the constitutional validity of the 2023 Chief Election Commissioner and Other Election Commissioners Appointment, Conditions of Service and Term of Office Act to a larger bench. The law was passed by Parliament in December 2023, replacing an arrangement created by a Supreme Court judgement in March 2023.
On Wednesday, the Supreme Court referred six petitions challenging the constitutional validity of the 2023 Chief Election Commissioner and Other Election Commissioners Appointment, Conditions of Service and Term of Office Act to a larger bench for review. The law was passed by Parliament in December 2023 and replaces an arrangement created by a Supreme Court judgement in March 2023 that had formed a selection committee consisting of the prime minister, the leader of the Opposition, and the chief justice of India.
During a hearing in May, the Supreme Court questioned the need for a Union Cabinet minister to be included in the selection panel. Justice Dipankar Datta had verbally observed that the third member ought to be a ‘neutral person’. He also questioned whether the leader of the Opposition’s presence was reduced to an ‘ornamental’ role when the prime minister and a Cabinet minister together had a 2:1 majority on the panel. The judge had emphasised that the Election Commission must not only be independent but must also be perceived as independent.
On July 30, the court reserved its decision on the Union government’s request to refer the matter to a larger bench. On Wednesday, Datta held that the law ‘does not appear to ensure an independent selection process’ and questioned the inclusion of Cabinet ministers as they fail to provide an independent counterweight. He further stated that free and fair elections depend on a ‘truly independent’ Election Commission.
Justice Satish Chandra Sharma disagreed with these observations, stating that a ‘substantial question of law was involved in the matter’, which must be decided by a larger bench. The composition of the selection committee means that the government enjoys a 2:1 majority over the leader of the Opposition.
In February 2025, Gyanesh Kumar was appointed the chief election commissioner even as Opposition leader Rahul Gandhi submitted a dissent note at the selection meeting. Gandhi had asked the government to defer the appointment until the Supreme Court decided the petitions challenging the new selection process. His dissent note was included in the proceedings of the meeting.
Source:
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