Two Supreme Court judges have recommended that constitutional questions be examined through a special session and that a five-judge Constitution Bench be constituted to hear key issues arising from the 2023 law on appointing the Chief Election Commissioner and other Election Commissioners.
The petitions challenge provisions of the 2023 legislation passed by Parliament, which altered the selection committee by replacing the Chief Justice of India with a Union minister. Multiple parties moved the Supreme Court against the law, and the Union government had sought that the matter be referred to a Constitution Bench.
Justice Dipankar Datta held that there was no need to transfer the petitions to a Constitution Bench. He observed that it is not enough for the Election Commission to function independently; it must also be seen to be independent. He questioned how a Union minister in the Prime Minister’s cabinet could take a position contrary to the Prime Minister in the selection process, and said replacing the CJI with a minister would upset the balance.
Justice Satish Chandra Sharma, however, said the question of whether Parliament can remove the neutral Chief Justice of India from the selection committee is a significant constitutional issue raised for the first time. Citing Article 145(3), he said the matter should be heard by at least a five-judge Constitution Bench.
While the judges differed on the referral, both agreed that moving the case to a three-judge bench would only cause unnecessary delay. They directed that the issue of constituting a five-judge Constitution Bench to examine Section 7 and other key provisions of the 2023 law be placed for the Chief Justice of India’s consideration, and also urged consideration of a permanent special Constitution Bench for such matters.
