The Supreme Court on Wednesday, September 23, referred a batch of petitions challenging the constitutional validity of the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) for consideration by a Constitution Bench.The petitions have been filed by the Association for Democratic Reforms (ADR), Congress leader Jaya Thakur and others. They challenge provisions of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, particularly the process used to select members of the Election Commission.What Did the Supreme Court Say on the CEC Appointment Law?The matter was heard by a bench comprising Justices Dipankar Datta and Satish Chandra Sharma. The judges differed on whether the petitions needed to be referred to a five-judge Constitution Bench.Justice Datta was of the view that a larger-bench reference was not necessary, while Justice Sharma supported the reference. Despite their difference, the bench directed that the matter be placed before the Chief Justice of India for constitution of a Constitution Bench, noting that sending the issue first to another bench could lead to further delay.The court's latest order is therefore procedural. It does not mean that the Supreme Court has struck down or upheld the 2023 law.What Is the 2023 Law on CEC and EC Appointments?The Chief Election Commissioner and Other Election Commissioners Act, 2023 was enacted by Parliament to establish the appointment process and other service conditions for the CEC and Election Commissioners.Under the law, the Selection Committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition in the Lok Sabha.The 2023 framework replaced the earlier arrangement laid down by the Supreme Court as an interim measure in the Anoop Baranwal case. Under that arrangement, the selection committee included the Prime Minister, the Chief Justice of India and the Leader of Opposition until Parliament enacted a law on the subject.Why Are ADR and Jaya Thakur Challenging the Law?The petitioners have argued that removing the Chief Justice of India from the selection committee affects the independence of the Election Commission.According to the petitions, the composition of the new committee gives the executive a greater role in the appointment process and raises concerns about the institutional independence of the Election Commission.They have relied on the Supreme Court's 2023 judgment in Anoop Baranwal and constitutional principles concerning the independence of the Election Commission and free and fair elections.The challenge specifically includes Section 7 of the 2023 Act, which deals with the Selection Committee. The petitioners have sought changes to the appointment mechanism, including the inclusion of the CJI.What Is the Centre's Stand?The Union government has defended the 2023 law and argued that Parliament has the authority under Article 324 of the Constitution to establish the appointment mechanism through legislation.During the proceedings, the Centre also opposed the argument that the composition of the committee should automatically be considered a threat to the independence of the Election Commission. The government had urged consideration of the constitutional questions by a larger bench.The competing legal positions therefore concern the scope of Parliament's power under Article 324 and the constitutional requirements relating to the independence of the Election Commission.What Happens Next?The matter will now be placed before Chief Justice of India Surya Kant for the constitution of a Constitution Bench. The larger bench will eventually consider the constitutional questions raised by the petitions.For now, the Supreme Court has not given a final ruling on the validity of the 2023 CEC and EC appointment law. The existing law therefore remains in force unless and until a court order changes its operation.
