DR. JAYA THAKUR AND ORS. v. UNION OF INDIA AND ANR.
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Judgment
2026 INSC 1040 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 14 OF 2024
DR. JAYA THAKUR AND ORS. … PETITIONERS
VERSUS
UNION OF INDIA AND ANR. … RESPONDENTS
WITH
WRIT PETITION (CIVIL) NO. 13 OF 2024
GOPAL SINGH … PETITIONER
VERSUS
UNION OF INDIA AND ANR. … RESPONDENTS
WITH
WRIT PETITION (CIVIL) NO. 11 OF 2024
NAMAN SHERSTRA AND ANR. … PETITIONERS
VERSUS
UNION OF INDIA … RESPONDENT
WITH
WRIT PETITION (CIVIL) NO. 87 OF 2024
ASSOCIATION FOR DEMOCRATIC Signature Not Verified
REFORMS Digitally signed by … PETITIONER VERSUS rashmi dhyani pant Date: 2026.09.23 17:10:09 IST Reason:
UNION OF INDIA … RESPONDENT
WITH
WRIT PETITION (CIVIL) NO. 191 OF 2024
PEOPLE’S UNION FOR CIVIL LIBERTIES AND ANR. … PETITIONERS
VERSUS
UNION OF INDIA … RESPONDENT
WITH
WRIT PETITION (CIVIL) NO. 272 OF 2024
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA … PETITIONER
VERSUS
UNION OF INDIA AND ORS. … RESPONDENTS
OPINION
DIPANKAR DATTA, J.
1. It is a foundational principle of our constitutional scheme that ours is a
government of laws, not of men, where the rulers are bound by the law;
they can never be above the law. It is in this larger constitutional
context that the implications of the present opinion must necessarily be
weighed. While the significance of a judicial opinion is not always to be
measured by the controversy that occasions it, the present matter calls
for an approach alive to the possibility that the opinion of this Court
may well outlive the immediate controversy.
2. The principal challenge in this cluster of petitions under Article 32 of the
Constitution of India1 is common and of considerable significance too.
Public spirited individuals and societies registered under the Societies
Registration Act, 1860 have invoked the writ jurisdiction of this Court,
separately, questioning several provisions of the Chief Election
Commissioner and other Election Commissioners (Appointment,
Conditions of Service and Term of Office) Act, 20232 as ultra vires Article
14 read with Article 324 of the Constitution. While the primary challenge
is to Section 73 of the 2023 Act, the subsidiary challenges are to
Sections 64 and 8(2)5 thereof.
3. There are five applications for intervention [I.A. 62608/2024, I.A.
146198/2026, I.A. 44405/2025, I.A. 177937/2026 and I.A.
297176/2024] filed by individuals in various writ petitions supporting
1 Constitution 2 2023 Act 3
7. Selection Committee.—(1) The Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of— (a) the Prime Minister—Chairperson; (b) the Leader of Opposition in the House of the People—Member; (c) a Union Cabinet Minister to be nominated by the Prime Minister—Member. Explanation.—For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the House of the People has not been recognised as such, the leader of the single largest party in opposition of the Government in the House of the People shall be deemed to be the Leader of Opposition. (2) The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in or any defect in the constitution of, the Selection Committee. 4
6. Search Committee.—A Search Committee headed by the Minister of Law and Justice and comprising two other members not below the rank of Secretary to the Government of India, shall prepare a panel of five persons for consideration of the Selection Committee, for appointment as the Chief Election Commissioner and other Election Commissioners. 5
8. Power of Selection Committee to regulate its own procedure.—(1) The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chief Election Commissioner or other Election Commissioners. (2) The Selection Committee may also consider any other person than those included in the panel by the Search Committee.
the cause of the petitioners. On the other hand, one individual applicant
by filing I.A. 38815/2025 has sought intervention to oppose the prayers
made in the writ petitions.
4. Hearing of the writ petitions commenced on 6th May, 2026 and continued
over 4 days (on 7th May, 14th May, 27th May and 30th July, 2026).
Learned senior counsel/learned counsel on behalf of the respective
petitioners and the supporting intervenors6 had concluded their
arguments on the merits of the challenge, whereupon Mr.
Venkataramani, learned Attorney General for India was called upon to
address the Court.
5. Initially, the learned Attorney was heard by this Court to oppose the
challenge to the vires of the aforesaid sections, laid by the challengers,
on merits. However, in gradual course of his arguments, learned
Attorney drifted towards contending that the writ petitions raise a
substantial question of law as to the interpretation of the Constitution
and that this Court, sitting in the present combination of 2-Judges,
instead of deciding the contentious issue of constitutionality of Sections
7, 6 and 8(2) of the 2023 Act, may refer such issue to the Hon’ble the
Chief Justice of India7 for constitution of a Bench of at least 5 (five)
Judges in terms of the provisions contained in clause (3) of Article 145
of the Constitution.
6 the challengers 7 the CJI
6. Mr. Tushar Mehta, learned Solicitor General of India adopted the stance
of the learned Attorney and submitted that these writ petitions ought to
be so referred, while advancing additional arguments which are
proposed to be noted hereafter.
7. Learned senior counsel/learned counsel for the challengers raised
vehement objections and contended, in unison, that neither did the
Union of India and the other respondents8 aver in the counter affidavit
that the issue, of which this Court is seized, ought to be referred to a
Constitution Bench nor was such an argument advanced at the inception
of the hearing by the learned Attorney/learned Solicitor. This, according
to the challengers, is nothing but a ploy to delay the final decision on
these writ petitions.
8. Even otherwise, on behalf of the challengers, it was argued that no case
for a reference does exist and that this Court ought to take the
proceedings to its logical conclusions by ruling on the merits of the
challenge. Mr. Vijay Hansaria, Mr. Sanjay Parikh, Mr. Gopal
Sankaranarayanan, Mr. Shadan Farasat, learned senior counsel; Mr.
Prashant Bhushan and Mr. Kaleeshwaram Raj, learned counsel as well
as Mr. Shukla were heard at length.
9. The challengers, collectively, have argued as follows:
a. Not all the challengers contend that the CJI must necessarily be
part of the Selection Committee. Predominantly, the challenge is
8 the defenders
to the executive dominance in the appointment mechanism under
Section 7 of the 2023 Act.
b. The Constitution Bench of this Court in Anoop Baranwal v.
Union of India9, not only addressed the constitutional vacuum
under Article 324(2), but also held that the Election Commission
of India10 must be insulated from exclusive executive control in
appointments (emphasis supplied by counsel). Since Article 324
has already been authoritatively interpreted, the present case only
requires application of that settled principle to the 2023 Act.
c. Since the issue is one of application of settled constitutional
principles (emphasis supplied by counsel), and not a substantial
question of law relating to the interpretation of the Constitution, a
reference is unnecessary. Reference to a Constitution Bench is not
warranted merely because the impugned legislation is novel or
constitutional in character, lest the threshold under Article 145(3)
be rendered meaningless. Reliance was placed on People’s Union
for Civil Liberties v. Union of India11, Shrimanth Balasaheb
Patil v. Karnataka Legislative Assembly12, State of J&K v.
Thakur Ganga Singh13, and Abdul Rahim Ismail C.
Rahimtoola v. State of Bombay14.
9 (2023) 6 SCC 161 10 ECI 11 (2003) 4 SCC 399 12 (2020) 2 SCC 595 13 AIR 1960 SC 356 14 1959 SCC OnLine SC 60
d. Even independent of Anoop Baranwal (supra), placing the
appointment of Election Commissioners substantially under
executive control compromises the constitutional balance,
particularly because the executive itself is a participant in the
electoral process.
e. Plea for reference under Article 145(3) has been raised after the
matter had remained pending for about two years, despite no such
contention in the counter-affidavit. Reliance was placed on
Madras Bar Association v. Union of India15, to contend that
such an eleventh-hour approach should be deprecated and
disapproved.
f. Several constitutional challenges have been decided by smaller
Benches and the mere fact that constitutional validity is in issue
does not warrant a reference to a Constitution Bench. Reliance
was placed on Shreya Singhal v. Union of India16; Nikesh
Tarachand Shah v. Union of India17; NALSA v. Union of
India18; Anuj Garg v. Hotel Association of India19;
Subramanian Swamy v. Union of India20; Indian Hotel &
Restaurant Assn. v. State of Maharashtra21; Lily Thomas v.
15 (2026) 2 SCC 1 16 (2015) 5 SCC 1 17 (2018) 11 SCC 1 18 (2014) 5 SCC 438 19 (2008) 3 SCC 1 20 (2016) 7 SCC 221 21 (2013) 8 SCC 519
Union of India22; D.K. Basu v. State of West Bengal23;
Nandini Sundar v. State of Chhattisgarh; Independent
Thought v. Union of India24, Pattali Makkal Katchi v.
A. Mayilerumperumal25 and Union of India v. Rajendra N.
Shah26.
g. Anoop Baranwal (supra) traced Article 324 to the Constituent
Assembly Debates27 and held that the constitutional scheme was
intended to prevent exclusive executive control (emphasis
supplied by counsel) over appointments. The absence of
legislation was treated as creating a constitutional vacuum. Article
324(5) provides safeguards against removal and adverse
alteration of service conditions, but Anoop Baranwal (supra)
recognised that a more fundamental requirement is that the
appointment itself must not be exclusively controlled by the
executive (emphasis supplied by counsel).
h. The challengers characterise the issue as whether the legislature
has validly removed the basis of Anoop Baranwal (supra), rather
than whether Article 324 itself requires fresh interpretation. This
is, therefore, an exercise in applying settled law.
22 (2013) 7 SCC 653 23 (1997) 1 SCC 416 24 (2017) 10 SCC 800 25 (2023) 7 SCC 481 26 (2021) 9 SCC 1 27 CA Debates
i. A reference to 5 (five) Judges would effectively permit the
defenders to challenge or seek reconsideration of Anoop
Baranwal (supra) without following the proper procedure for
reconsideration of a binding precedent.
j. Anoop Baranwal (supra) is binding under Article 141 and that
the 2023 Act effectively seeks to legislatively overrule the
judgment, which is impermissible. Reliance was placed on Shri
Prithvi Cotton Mills Ltd. v. Broach Borough Municipality28;
Municipal Corpn. of the City of Ahmedabad v. New Shrock
Spg. and Wvg. Co. Ltd.29; Madan Mohan Pathak v. Union of
India30; In re: Cauvery Water Disputes Tribunal31; PUCL v.
Union of India32; State of Karnataka v. Karnataka Pawn
Brokers Assn.33; and Medical Council of India v. State of
Kerala34.
k. Independently, it was contended that the 2023 Act violates
Articles 14 and 19, since independence of the body supervising
elections is integral to equality and democratic governance.
28 (1969) 2 SCC 283 29 (1970) 2 SCC 280 30 (1978) 2 SCC 50 31 1993 Supp (1) SCC 96 (2) 32 (2003) 4 SCC 399 33 (2018) 6 SCC 363 34 (2019) 13 SCC 185
l. Relying on Rao Shiva Bahadur Singh v. State of Vindhya
Pradesh35, Mr. Raj contended that a reference is not called for in
the present facts and circumstances.
m. Finally, after the order on these petitions was reserved, Mr. Gopal
Sankaranarayanan submitted a written note relying on Keshav
Mills Co. Ltd. v. CIT36 to oppose the defenders’ prayer for a
reference. He submitted that a reference to a larger Bench or
reconsideration of an earlier decision is warranted only for
compelling reasons or in the larger public interest, neither of which
is present here. According to him, entertaining the plea would
effectively enable the defenders to seek a dilution of the principles
laid down in Anoop Baranwal (supra) which would be against
public interest. Reliance, in this connection, was also placed on an
opinion rendered by one of the Judges of the 9-Judge Bench in
State of Uttar Pradesh v. Jai Bir Singh37, where the principles
in Keshav Mills (supra) were applied to reject the reference
therein as being erroneous.
10. Learned Attorney, on behalf of the defenders, advanced elaborate
submissions which are noted hereunder.
a. The contentions of the challengers precede on the premise, albeit
incorrectly, that the question of law laid down by this Court in
35 1955 (1) SCC 539 36 AIR 1965 SC 1636 37 2026 INSC 897
Anoop Baranwal (supra) categorically occupies the field of law
and does not leave any room for an alternate view by the
Parliament on the subject of matters relating to the ECI. Such
submission of the challengers is inherently incorrect. The
questions that this Court must answer here have not been dealt
with by this Court in any prior decision including Anoop
Baranwal (supra). Such questions mandatorily require an
interpretation of the Constitution and not mere application.
b. Reliance, in support, was placed on a catena of decisions of this
Court, viz. State v. Kalyan Singh38, Union of India v Rajeev
Bansal39, Dayaram v. Sudhir Batham40, Maharashtra
Adiwasi Thakur Jamat Swarakshan Samiti v. State of
Maharashtra41 and Kalyan Chandra Sarkar v Rajesh
Ranjan42 to contend that a clear distinction exists between the
law declared by this Court under Article 141 of the Constitution
and directions issued under Article 142 for doing complete justice.
According to him, while the former constitutes binding precedent,
the latter is confined to the peculiar exigencies of the case and
does not possess the same precedential force. Proceeding on this
premise, it was urged that the directions issued in Anoop
Baranwal (supra) were not a declaration of law under Article 141
38 (2017) 7 SCC 444 39 2024 INSC 754 40 (2012) 1 SCC 333 41 (2023) 16 SCC 415 42 (2005) 3 SCC 284
but merely interim measures fashioned in exercise of the Court’s
powers under Article 142 to fill a legislative vacuum. Developing
the point further, it was submitted that such directions were
intended to operate only until the Parliament enacted an
appropriate law. Consequently, with the field now occupied by
legislation, the directions in Anoop Baranwal (supra) cease to
have any independent relevance and cannot furnish a basis for
assailing the constitutional validity of the impugned enactment.
c. While addressing the challenge to the impugned legislation, albeit
without detracting from the plea for a reference, it was contended
that the mere fact of the Selection Committee comprising the
Prime Minister, a Union Cabinet Minister and the Leader of the
Opposition cannot, by itself, justify an inference of bias,
partisanship or institutional unfairness in the process of
appointment. The impugned enactment represents a considered
exercise of legislative wisdom by the Parliament and rests on the
well-settled constitutional presumption that high constitutional
functionaries, particularly the Prime Minister, would discharge
their duties with objectivity, fairness and due regard to the larger
public interest. The legislature has consciously constituted a
collegial body comprising high constitutional functionaries and the
decision of such a body is intended to operate through collective
institutional deliberation. The composition of the Committee
cannot be viewed through a lens of suspicion merely because the
executive enjoys a numerical majority therein. Therefore, the
contention of the challengers that the impugned legislation has
led to executive dominance in the appointment process merits
rejection. The decision of this Court in CPIL v Union of India43
was cited in support of the aforesaid submission.
d. In light of the above, it was urged that at this juncture, the Court
has to consider whether judicially evolved norms can preclude the
Parliament from enacting a different legislative framework;
whether a law may be invalidated solely for departing from a
judicially expressed view; whether the principle of separation of
powers preserves the Parliament’s authority to independently
legislate on the subject; and whether the impugned law can be
struck down in the absence of material demonstrating any actual
threat to the independence of the ECI. These are, in essence,
questions which squarely attract clause (3) of Article 145 of the
Constitution and warrant consideration by a Bench of not less than
5 (five) Judges.
11. While, however, arguing on the same lines as the learned Attorney for
referring these petitions to a Bench of not less than 5 (five) Judges, the
learned Solicitor referred to Order XXXVIII, Rule 1 of the Supreme Court
Rules, 201344 which, he submitted, is a virtual re-enactment of Article
145(3). According to him, the desirability of deliberations and
43 (2011) 4 SCC 1 44 SCR
application of mind by a larger Bench will always be a persuading factor
whilst interpreting the Constitution.
12. Apart from so urging, the learned Solicitor too touched upon the merits
of the challenge laid.
13. A part of the learned Solicitor’s submissions related to the constitutional
trust that the people have reposed in the Prime Minister; in the next
part, he urged this Court to appreciate that Anoop Baranwal (supra)
cannot bind the legislature from enacting a law contrary thereto; and
the final part was confined to providing justification for not including the
CJI in the body of selectors.
14. On the point of constitutional trust, the learned Solicitor invited this
Court’s attention to certain passages from the decision of the
Constitution Bench in Manoj Narula v. Union of India45. According to
him, it was the view of none other than Dr. B. R. Ambedkar that if the
Prime Minister of the country cannot be trusted, no one else can be
trusted.
15. Learned Solicitor next argued that if it were to be held that the
legislature is not permitted to travel beyond the decision of this Court
in Anoop Baranwal (supra), it would, in essence, destroy the basic
structure of the Constitution. According to him, Anoop Baranwal
(supra) introduced a pro tem measure, and the guidelines laid down
must be restricted to the point of law raised therein.
45 (2014) 9 SCC 1
16. In the final part, the learned Solicitor, while defending the impugned
legislation which excludes the CJI, also buttressed his argument by
drawing a parallel with judicial appointments. Referring to the criticism
widely canvassed for quite some time past that ‘Judges appoint Judges’
— a criticism which, it may be noted, has also found pronounced
expression in the views of several jurists concerned with the
functioning, accountability and institutional independence of the
judiciary — he was heard to contend that if participation of outsiders is
not envisaged in the appointment of Judges of this Court and the High
Courts under the Collegium system of appointment of Judges, a similar
objection cannot be raised in the context of appointments of the Election
Commissioners comprising the ECI. According to him, it has been
articulated in various quarters that the criticism is not limited to the
participation or non-participation of outsiders, but extends to the
broader question whether judicial independence can be understood to
exclude all forms of scrutiny, accountability and institutional corrective
measures. He referred to public acknowledgement of mistake by
Hon’ble Judges (since retired) who had passed verdicts in favour of the
Collegium system of appointment. While acknowledging that
independence of the judiciary is important, it was urged that the
independence of the other two organs is also crucial and equally
important and should be respected. Further, it was argued that the
Parliament, being directly accountable to the people, is competent to
prescribe the composition of the Selection Committee, and the
impugned legislation cannot be questioned merely because it excludes
the CJI or any other neutral selector from the appointment process.
17. The argument of the learned Solicitor on the final part seeking to draw
a parallel with judicial appointments (made orally, and does not form
part of the written submissions), in the considered opinion of this Court,
has a bearing on the integrity of the institution. Though not too relevant
for the purpose of giving an opinion on the question of whether a
reference is called for, which is presently under consideration, his
reference to “Judges appointing Judges” seeks to revive an old criticism
and, unwittingly, travels beyond the present lis. Avoidable in the context
of the present challenge, reference to the criticism on such a sensitive
issue ought best to have been left alone. In course of hearing, this Court
preferred not to seriously react. The first instinct too, while writing this
opinion, was to be reticent and let such criticism pass. But, on a second
thought, it is realised that the judiciary cannot always be at the
receiving end. A couple of relevant observations in response need to be
made, lest the silence be misunderstood as a tacit acceptance by the
Court of such unworthy criticism in circulation.
18. It is, thus, deemed proper to examine briefly, hereafter, the nature of
duty entrusted to the Collegium and its working ever since it was
institutionalised by the Constitution Bench decisions in Supreme Court
Advocates-on-Record Association v. Union of India46 and In Re:
Special Reference No.1 of 199847 and the executive’s role.
19. At its core, the collegium system has indeed faced criticism from various
quarters principally on the ground that it functions without any external
participation and is entirely Judge-driven, in matters concerning
selection and appointment to other conditions of service like transfer. It
is undeniable that the Collegium system has occasionally faltered and
its functioning has not been entirely free from aberrations. However,
vociferous criticism, by itself, does not offer an alternative. While the
absence of an outsider in the process may invite scrutiny, executive
supremacy cannot be the cure. The constitutional quest is not to
transfer primacy from one organ to another, but to secure a system that
preserves institutional independence through calibrated checks and
balances, and fidelity to judicial independence. The Parliament’s
initiative to introduce the National Judicial Appointments Commission to
replace the Collegium system did not fructify, for, the relevant
constitutional amendment and the statutory provisions were found to
breach the basic feature of judicial independence and, thus, declared
ultra vires by this Court in Supreme Court Advocates-on-Record
Association v. Union of India48. Such decision too faced severe
criticism; but, although much water having flown under the bridge since
the relevant legislation was outlawed, so far, for all the criticism, no
46 (1993) 4 SCC 441 47 (1998) 7 SCC 739 48 (2016) 5 SCC 1
other alternative model that is demonstrably superior for the judiciary
in this country has been suggested. Despite all its opacity and
imperfections, the Collegium system still remains the most viable option
for safeguarding independence, as envisioned under Article 50 of the
Constitution by its framers. Like every other system, it is axiomatic that
the Collegium must evolve to subserve the interests of all the
stakeholders and must constantly reform its working to address the
criticism levelled against it. Nonetheless, one need not look to foreign
jurisdictions for cautionary tales of what happens when the fine balance
between judicial independence and executive influence collapses; our
own constitutional history offers enough lessons. Criticism may be
abundant, but a viable substitute being conspicuously absent, the
deficiencies cannot be used as a justification to usher in participation of
the executive in the Collegium deliberations.
20. Having said so, it is considered absolutely necessary to address a
misconception that has been allowed to proliferate. The oft-repeated
phrase that “Judges appoint Judges” is a myth, which people have been
fed by vested interests through motivated narratives, often drawing
sustenance from certain controversial decisions taken in this century in
relation to appointment of Judges. A sweeping generalisation that the
Collegium acts as a law unto itself overlooks the detailed consultative
process envisaged under the Constitution, and the intrinsic role of the
executive — both at the Centre and in the States — as well as
intelligence and other agencies in the appointment process including
vetting of credentials, and the fact that every appointment bears the
imprimatur of the President. The uninitiated and the unversed,
unknowingly, have thus been made to believe that the Collegium of the
Supreme Court and the collegia of the High Courts comprise of “Judges,
who appoint Judges”; and, it has become fashionable nowadays to
blame the Collegium for every infelicitous choice, conveniently
forgetting that aberrations are exceptions and not the norm, and that
no system can guarantee infallibility of human choice. Perhaps, none
else other than the Government knows better how the Collegium system
works.
21. Equally important is to put the discourse in perspective. The role of the
Collegium, insofar as selection is concerned, is nothing more than
recommendatory. At every stage prior to the recommendations taking
shape, the executive is involved. Whispers are heard in the corridors
that unless approval of the […]; however, let whispers remain whispers
and not drown the constitutional wisdom that has sustained the
institution.
22. What is, however, unmissable is that even at the end of the day,
acceptance of the recommendations is within the exclusive domain of
the executive; it may, or may not, accept the recommendations. The
final say, rests with the executive. For the past year and a half or so,
advocates/judicial officers recommended for elevation by the collegia of
the High Courts are called upon to interact with the Hon’ble Judges
forming part of the Collegium, led by the CJI, whereafter those who are
found to be suitable in all respects are finally recommended. However,
it is not infrequent that out of a list of advocates/judicial officers
ultimately recommended by the Collegium, one or a couple of them are
held back by the executive and not elevated as Judges. The system is
so calibrated that the executive can override the recommendation of the
CJI led Collegium, notwithstanding the precedents mandating that
primacy has to be given to the opinion of the CJI. On multiple occasions,
recommendations have not been acted upon by the executive without
reasons being disclosed and available in the public domain; and a few
of them, even after reiteration, have been left to gather dust for years.
Even recommendations for transfer of Judges made by the Collegium in
the interest of administration of justice are not acted upon by the
executive in a number of cases. If the recommendations of the
Collegium of the Supreme Court were binding in nature, the same would
certainly have been implemented in their entirety. Unfortunately, the
records tell a different story. Informed by prudence, the institutional
faultlines with specifics are not considered worth discussing here.
Suffice it to observe, the institution of the judiciary would have been
richer had sheer merit, unimpeachable integrity, and sterling character
always counted for appointments/elevations to the High Courts and the
Supreme Court. Several persons possessed of the aforesaid qualities
have been overlooked in the past and, thus, not elevated as High Court
Judges, and even as Judges of the Supreme Court owing to reasons
other than merit. Those involved in the process, i.e., from the executive
and the judiciary, know better the real reasons for such exclusion.
23. What is most worrying and needs attention for a remedy is that the
sanctity of a Collegium resolution is lost each time the executive
implements it selectively, albeit approving majority of those
recommended while withholding at least one. Undeterred by such
piecemeal approvals and regardless of the fate of those not cleared by
the executive, the Collegium chooses to proceed, seemingly, to avoid a
head-on conflict with the executive and left with a Hobson’s choice to
keep the institution running. What it thereby averts, arguably, is a
constitutional crisis; but the larger question which looms is: how long
can this state of affairs continue, if such selective implementation is
allowed to acquire the character of an accepted practice?
24. Dr. B. R. Ambedkar’s vision was that the judiciary must both be
independent of the executive and be competent in itself. However, given
the present situation, that vision appears blurred and under serious
strain. This Court is left to wonder why, even after the judiciary has
been relegated to playing second fiddle to the executive in the matter
of appointment of Judges, is there still a clamour to induct an outsider
at the stage of selection? Coming as it does from the side of the
executive, the argument ill-behoves its stature and is a feeble attempt
to deflect attention from its own dereliction and failure.
25. This part of the discussion is concluded by observing that since it is the
executive that wields decisive control and holds the reins over
appointments of Judges at every stratum, the response of the defenders
for sustaining the impugned legislation by seeking to draw a parallel
with the Collegium system of not having an outsider is rather
disingenuous, evasive and disquieting. At the same time, this Court
expresses hope and trust that henceforth only judicious and apposite
choices shall be made by the present Collegium, under the able
leadership of the CJI, leaving little room for future criticism of the
system’s working.
26. Now, to refer — or not to refer — the petitions to a Constitution Bench
in the light of what is provided in clause (3) of Article 14549 of the
Constitution read with Order XXXVIII50 of the SCR, 2013 which have
been heavily relied on by the defenders is the short but fundamental
question before this Court, which is sought to be answered.
27. The essence of the submissions of the challengers has been that the
decision of the Constitution Bench in Anoop Baranwal (supra) and the
other decisions, relied upon by them, leave little room for upholding the
Footnotes
impugned provisions as intra vires. The law having thus crystallised, the
plea for a reference is absolutely not well-founded and untenable.
28. In view of the rival arguments, much would depend on how this Court
reads the scholarly opinion rendered by this Court in Anoop Baranwal
(supra). Does the decision, within the meaning of Article 141 of the
Constitution, declare a law which is binding? Or, is it a decision which
has to be understood as an authority for the question it answered?
29. Before embarking on the analysis and since the learned Solicitor has
invited the attention of this Court to the decision of the Constitution
Bench in Manoj Narula (supra), where reputed authors and jurists
have been quoted, walking down memory lane to ascertain what Dr.
B.R. Ambedkar, the main architect of the Indian Constitution, had to
say about the role of the Prime Minister and the doctrine of
constitutional trust, would seem largely relevant in the present context.
30. Responding to the proposal for the amendment suggested by Prof. K.T.
Shah with regard to introduction of a disqualification of a convicted
person becoming a Minister in the Council of Ministers in the
Constitution itself, which is quoted in paragraph 83 of the Constitution
Bench decision in Manoj Narula (supra), Dr B.R. Ambedkar had
replied: (CA Debates Vol. VII, p. 1160)
“His last proposition is that no person who is convicted may be appointed a Minister of the State. Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any Member of this House would like to differ from him on that proposition. But the whole question is this: whether we should introduce all these qualifications and disqualifications in the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the legislature and the public at large watching the actions of the Ministers and the actions of the legislature to see that no
such infamous thing is done by either of them? I think this is a case which may eminently be left to the good sense of the Prime Minister and to the good sense of the legislature with the general public holding a watching brief upon them. I therefore say that these amendments are unnecessary.” (emphasis added)
31. The hope, faith and trust that Dr. Ambedkar reposed in the office of the
Prime Minister and parliamentary democracy appears to have fast
eroded within a couple of years of India gaining independence. In his
address51 on 28th October, 1951 on “FAILURE OF PARLIAMENTARY DEMOCRACY
WILL RESULT IN REBELLION, ANARCHY AND COMMUNISM”, Dr. Ambedkar’s
lament cannot go unnoticed52. For the sake of brevity, relevant excerpts
from it are quoted hereunder:
“Today the same thing is happening. Congress is accepting the financial help of the Banias, Marwaries and other multi-millionaires. Congress is eating their food and it follows, therefore, naturally that Congress will have to take the side of these ‘Big Business’ at all crucial times. We also find that the Government servants are influencing the elections in favour of the party which is feeding them and their dependants. No less a personality than Dr. Shyama Prasad Mukherjee, at the inaugural session of the Bhartiya Jan Sangh at Delhi recently, openly charged the Government servants of helping the Congress and thereby nullifying the elections from being free and fair. Under these circumstances, do you, gentlemen, think that there is any hope for the Parliamentary Democracy to succeed. If Parliamentary Democracy fails in this country and it is bound to fail for the reasons mentioned by me, the only result will be rebellion, anarchy and Communism. … Gentlemen, I want you to take note of these eventual certainties and if you wish that Parliamentary System of Government and Parliamentary Democracy prevail in this country, if you are satisfied that we will be assured of our liberty of thought, speech and action, if we should preserve our independence, if we cherish the inherent right of individual liberty, then it is your duty as students, as intelligent community of our country, to strive your utmost to cherish this Parliamentary System of Government in its true spirit and work for it.” (emphasis added)
51 to the students’ Parliament of D.A.V. College, Jullundar City (Punjab) 52 Dr. Babasaheb Ambedkar, ‘Failure of Parliamentary Democracy will result in Rebellion, Anarchy And Communism’, Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 17 Part III, published by the Dr. Ambedkar Foundation Ministry of Social Justice and Empowerment, Government of India, at pages 422-428
32. While this Court cannot comment on the factual assertions made by Dr.
Ambedkar in the aforesaid extract, one thing is clear: even in the
nascent years of Indian independence, Dr. Ambedkar expressed a fear
of institutional capture of the electoral process which could contribute
to the failure of parliamentary democracy in India. It is proposed to
allude to this aspect further in the paragraphs that follow.
33. Soon followed Dr. Ambedkar’s speech titled ‘CONDITIONS PRECEDENT FOR
THE SUCCESSFUL WORKING OF DEMOCRACY’, which was delivered on 22nd
December, 195253 before the members of the Poona District Law Library.
As per Dr. Ambedkar, there were a few essential conditions precedent
for the success of modern democracy. These are (i) the absence of
inequality; (ii) the existence of opposition; (iii) equality in law and
administration and; (iv) the observance of constitutional morality.
34. For the purposes of this opinion, it is deemed apposite to notice what
Dr. Ambedkar had mentioned regarding conditions (ii) and (iv).
35. In respect of condition (ii), while Dr. Ambedkar was undoubtedly
speaking of the need for a formally recognized political opposition in the
Parliament, it is worth reproducing some of his observations in this
regard. In the considered opinion of this Court, these cannot be reduced
to merely observations regarding a political opposition but, rather, go to
the root of his conception of democracy.
53 Dr. Babasaheb Ambedkar, ‘Conditions Precedent for the Successful Working of Democracy’, Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 17 Part III, published by the Dr. Ambedkar Foundation Ministry of Social Justice and Empowerment, Government of India, at pages 473-486
“What does democracy mean? I am not defining it. I am asking a functional question. It seems to me that democracy means a veto of power. Democracy is a contradiction of hereditary authority or autocratic authority. Democracy means that at some stage somewhere there must be a veto on the authority of those who are ruling the country. In autocracy there is no veto. The King once elected is there with his inherent or divine right to rule. … There is no veto on the part of anybody on the power of the King. But in democracy we have provided, that at every five years those who are in authority must go to the people and ask whether in the opinion of the people they are well qualified to be entrusted with power and authority to look after their interest, to mould their destiny, to defend them.” (emphasis added)
36. Insofar as condition (iv) is concerned, Dr. Ambedkar argued that the
successful working of democracy required the observance of
constitutional morality. Dr. Ambedkar characterized constitutional
morality as the unwritten conventions and self-restraint that gives
substance to a constitution's bare legal skeleton. A written constitution,
he argued, is only a framework of legal provisions and its survival
depends on those who hold power voluntarily abiding by “the rules of
the game”, even when they were not legally compelled to.
37. Closely linked to the aforementioned four conditions, in the same
speech, Dr. Ambedkar also insisted that there could be no tyranny of
the majority over the minority, and there must exist a functioning moral
order in society for democracy to be successful.
38. There also exists record of Dr. Ambedkar’s disillusionment at the dawn
of the Constitution, not with parliamentary democracy as an idea, but
with how it was working in India. He clarified that the Constitution he
made was workable, but people in power had made it unworkable.
Deeply critical of the limitations of traditional parliamentary democracy,
he famously cautioned that India risked maintaining a democracy “in
form” on the surface while degenerating into a “dictatorship in fact” if
social inequalities were not actively dismantled.
39. Notably, a couple of years before his departure from this mortal world,
Dr. Ambedkar in an interview to the BBC while talking about the working
of parliamentary democracy in India could not hide his disappointment
and seemed to be completely dejected and depressed. The interview
reveals Dr. Ambedkar expressing his views on the state of elections
conducted in the country. He observed, with some dismay, ‘elections
are important provided they produce really good men’. Turning back to
what he stood for—reform of the social structure—he emphasized the
need for political representation accompanied by social transformation,
cautioning that democratic institutions would remain inadequate unless
they produced leaders committed to dismantling entrenched social
inequalities and securing genuine equality.
40. At this juncture, profitable reference may further be made to what the
distinguished jurist H.M. Seervai had to say about the working of the
cabinet form of Government. In his treatise on Constitutional Law54, the
learned author observed:
“18.57. The Constitution does not guarantee that power would be wisely exercised by the executive.— … But as long as the political atmosphere remains what it is, the Constitution cannot be worked as it was intended to be worked. It has been said that the Constitution confers power, but it does not guarantee that the power would be wisely exercised. It can be said equally that the Constitution confers power but it gives no guarantee that it will be worked by men of high character, capacity and integrity. If the Constitution is to be successfully worked, an attempt must be made to
54 Constitutional Law of India, Vol.2, 4 th Edition
improve the political atmosphere and to lay down and enforce standards of conduct required for a successful working of our Constitution.” (emphasis added)
41. After quoting the aforesaid passage in Manoj Narula (supra), the
Constitution Bench had the occasion to repose trust in the office of the
Prime Minister in the following words:
99. It is worthy to note that the Council of Ministers has the collective responsibility to sustain the integrity and purity of the constitutional structure. That is why the Prime Minister enjoys a great magnitude of constitutional power. Therefore, the responsibility is more, regard being had to the instillation of trust, a constitutional one. It is also expected that the Prime Minister should act in the interest of the national polity of the nation-State. He has to bear in mind that unwarranted elements or persons who are facing charge in certain category of offences may thwart or hinder the canons of constitutional morality or principles of good governance and eventually diminish the constitutional trust. We have already held that prohibition cannot be brought in within the province of “advice” but indubitably, the concepts, especially the constitutional trust, can be allowed to be perceived in the act of such advice.
100. Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less. (emphasis added)
42. What is worth pondering in the current situation is, whether the trust is
honoured in adequate measure? The Constitution gave us the
framework. It did not, rather could not, guarantee its own success. For
that, it trusted those who would wield power. Dr. Ambedkar’s famous
words55 rings in our ears even now.
55 … however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.
43. Experience gained over the years bears testimony to the fault lying in
working of the Constitution and not in its text. Over seven decades,
every dispensation wresting power found it convenient to keep
institutions, which the Constitution envisioned to be independent, under
their control. To enact a law on the lines empowered by Article 324(2)
would have meant freeing the ECI from exclusive executive control and
inviting trouble for the ruling regime. To the mind of this Court, this has
not been the failing of any one party or one period. A consistent trait of
political power, discernible over the decades, has been to preserve
leverage over the very body that is meant to judge its claim to power.
What is deciphered from the speech of Dr. Ambedkar delivered in
Jullundur is this: Dr. Shyama Prasad Mookherjee was heard/read by Dr.
Ambedkar as having pointed out, as early as in 1951, that Government
servants were helping the ruling party to ensure electoral success and
thereby not rendering free and fair elections. This, Dr. Ambedkar
invoked and warned, would endanger parliamentary democracy itself,
being the earliest symptom of this trait. It would seem that while asking
if parliamentary democracy could at all succeed if the executive were
all powerful, the great personality identified the core risk that Article
324(2) was designed to address: executive dominance over the
electoral arbiter.
44. Over the years since we (the people of India) gained independence,
there has been a change of guard at regular intervals. It is painful to
note that not a single party in power, entrusted by the people of India
to govern this great nation, took the initiative of enacting a law of the
nature which Article 324(2) left to the supreme law-making body, i.e.,
the Parliament, to legislate. Placing its own electoral fortunes in the
hands of a truly independent arbiter was not favoured by any political
party, for obvious reasons. To remain in power, the consistent pursuit
through executive action has indeed been simple — influence the
composition of the ECI, control the process of appointment of the Chief
Election Commissioner56 and the Election Commissioners57 and,
thereby, temper adverse electoral outcomes.
45. This tradition, common to all dispensations, continued for over seven
decades until it was broken by the 2023 Act after a necessary judicial
intervention. It was the Parliament’s first attempt to fill that
constitutional vacuum. Whether the 2023 Act fully answers the
apprehension of the early days of our Constitution of insulating the ECI
from the Government of the day or merely recalibrates executive
control, is the question that would arise for examination when the writ
petitions are decided on their own merits.
46. Having noted these events from history, which are part of the
introductory remarks, and bearing in mind the objections raised by the
defenders, this Court now proceeds to deliver its opinion, purely on the
basis of a prima facie understanding of what precisely was held by the
Footnotes
Constitution Bench in Anoop Baranwal (supra). For this, the need to
read the erudite opinion thoroughly does arise. What was the question
there and what did the Constitution Bench decide? Let the same be
briefly noticed.
47. In Anoop Baranwal (supra), the Constitution Bench was called upon
to consider the constitutional validity of the existing process for
appointment of the CEC and the ECs under Article 324(2)58 of the
Constitution in the absence of a law made by the Parliament, and the
implications thereof for the independence of the ECI.
48. The principal contention urged by the petitioners therein was that,
despite clause (2) of Article 324 expressly providing that the
appointments of the CEC and the ECs shall be “subject to the provisions
of any law made in that behalf by the Parliament”, no such law had been
enacted since the commencement of the Constitution. Consequently,
appointments continued to be made by the President on the aid and
advice of the executive, ordinarily the Prime Minister, under the Rules
of Business. It was argued that such a regime imperilled the
independence of the ECI, an institution central to the preservation of
free and fair elections, democracy, the rule of law, and the guarantees
embodied in Articles 14 and 19 of the Constitution. Ancillary prayers
58 Article 324. Superintendence, direction and control of elections to be vested in an Election Commission.- (1) *** 2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
sought parity in protection against removal of the ECs from office with
that enjoyed by the CEC under the first proviso to Article 324(5), and
the creation of an independent Secretariat with expenditure charged on
the Consolidated Fund of India.
49. Hon’ble K.M. Joseph, J. (as His Lordship then was) spoke for himself
and three other Hon’ble Judges comprising the Constitution Bench in
Anoop Baranwal (supra). Upon an exhaustive examination of the CA
Debates, the constitutional scheme, comparative constitutional practice
and precedents, His Lordship speaking for the majority held that Article
324(2) unmistakably contemplates parliamentary legislation regulating
the appointment process of the CEC and the ECs. The expression
“subject to the provisions of any law made in that behalf by Parliament”
was found to be integral to Article 324 and differentiated from similarly
worded provisions such as Articles 145, 148 and 243-K. It was observed
that while Article 145 enabled the Supreme Court to frame its own rules
in the absence of legislation and Article 148 contained no corresponding
mandate regarding the appointment of the Comptroller and Auditor
General; Article 324(2) deliberately subjected the appointment process
itself to parliamentary law. Having regard to the ECI’s direct nexus with
democracy, the rule of law and constitutional governance, especially in
reference to the detailed discussion on this article in the CA Debates, it
was held that the provision occupies a distinct constitutional position.
Article 243-K was noted, which contemplated appointment of the State
Election Commissioner to be made by the Governor. It was also noted
that while inserting the provision, the Parliament was aware of the
mandate of Article 324 and consciously chose not to subject the
appointment to any law made by it.
50. It was further observed that the failure of the Parliament to enact a law
for over seven decades had resulted in a constitutional vacuum of
considerable significance. While declining a mandamus to compel the
Parliament to legislate, it was held that, where such a vacuum threatens
foundational constitutional values, it is competent to exercise its powers
under Articles 32 and 142 to lay down interim norms until legislative
intervention occurs. Drawing upon the precedents in Vineet Narain v.
Union of India59, Vishaka v. State of Rajasthan60, Supreme Court
Advocates-on-Record Assn. v. Union of India61, and other
decisions, it was reaffirmed that where a constitutional vacuum exists
and fundamental values of democracy and the rule of law are imperilled,
this Court is under a duty to issue appropriate directions under Articles
32 and 142 till such time the Parliament intervenes. Accordingly, the
judgment laid down that until a law is made by the Parliament, the
appointment of the CEC and the ECs shall be made by the President on
the advice of a Committee comprising the Prime Minister, the Leader of
the Opposition in the Lok Sabha (or the leader of the largest opposition
party in terms of numerical strength), and the CJI. It is significant to
59 (1998) 1 SCC 226 60 (1997) 6 SCC 241 61 (1993) 4 SCC 441
note that the Court’s direction was expressly made subject to any law
that Parliament may enact.
51. This Court, however, declined to extend, by a judicial fiat, the same
protection against removal to the ECs as available to the CEC under the
first proviso to Article 324(5). Following the view expressed in
T.N. Seshan v. Union of India62, it was held that the constitutional
text did not permit such parity to be read into the provision. At the same
time, considering the importance of institutional independence in a
multi-member Commission, it was strongly recommended that the
Parliament may consider conferring similar safeguards upon the ECs
and protect their conditions of service from adverse variation after
appointment.
52. Hon’ble Ajay Rastogi, J. (as His Lordship then was) while concurring
with the majority on the appointment process, dissented on the
aforesaid aspect and favoured extending such protection to the ECs until
a law is made.
53. The prayer for an independent Secretariat and for charging the
expenditure of the ECI upon the Consolidated Fund of India was not
granted, on the reasoning that such matters lie within the legislative
and policy domain. Nevertheless, the Court emphasised the desirability
of such measures and urged the Union of India and the Parliament to
consider appropriate reforms to further strengthen the institutional
independence of the ECI.
62 (1995) 4 SCC 611
54. The decision in Anoop Baranwal (supra), in this Court’s opinion, is a
classic example of judicial statesmanship, exemplifying the concept of
judicial restraint by intervening to fill the vacuum but, with due
deference to the Constitutional feature of separation of powers,
refraining from embarking on judicial legislation. The Constitution Bench
brought the curtains down on the seven decade old legislative inertia,
bordering on tyranny of the (elected) majority, in not enacting a law
which the Constitution expressly and mandatorily required, and the
prevailing executive dominance of keeping appointments of the CEC and
the ECs in its hands, by delivering two major and significant outcomes
while at the same time insulating itself from the charge of law-making.
To put it plainly, the Court after highlighting the constitutional mandate
in Article 324(2) of the Constitution and having noticed that Parliament
had not made any such law which clause (2) envisaged, despite lapse
of 73 years since the Constitution came into force, mandated a pro tem
three-member Selection Committee (consisting of the Prime Minister,
the Leader of Opposition and the CJI) to select the CEC and the ECs;
and, then it proceeded to expressly and cleanly observe that such
arrangement would be temporary, that is, to hold the field until the
Parliament acting in exercise of power conferred on it by clause (2) of
Article 324, enacts a law providing for appointment of such
commissioners. The Constitution Bench, if one reads the judgment
carefully, indicated a mechanism to be evolved; it did not specify one to
be followed to the tee. What the Hon’ble Judges comprising the
Constitution Bench in Anoop Baranwal (supra) intended, in effect, was
a deliberate signalling advice, and not a mandate. The same can be
better encapsulated through the passage extracted hereinbelow:
311.1. We have before us the various Reports, which we have referred to. We would think that, while what must be laid down, must be fair and reasonable, but it must be what Parliament would or could lay down, if it were to make a law. Under the Rules of Business made under Article 77, it is acknowledged that the appointment of the Chief Election Commissioner and the Election Commissioners do not engage the Cabinet. (emphasis added)
55. Furthermore, illumining the said position, the phrase ‘we make it clear
that this’ [referring to the norms laid down in para. 315 of Anoop
Baranwal (supra)] settles the dust, if any, as to the intention of the
learned Judges, while enunciating the principles therein.
56. In the Court’s pro tem mechanism, one would find reflection of judicial
pragmatism tempered by deference to separation of powers. The Court
avoided, for good reasons, permanent judicial legislation, while still
securing a constitutional balance. To safeguard independence, it
included the CJI as a neutral arbiter; and to secure legitimacy, by
keeping it within the political process, included the Prime Minister and
the Leader of Opposition by ensuring their participation. If the
Constitution Bench were to rule that the three-member Selection
Committee is the final composition of selectors to select the CEC and
the ECs, it would have effectively amended clause (2) by deleting the
words “subject to the provisions of any law” and thereby re-written the
Constitution itself. Seemingly alive to the Laxman Rekha of restraint to
be exercised in matters of judicial legislation, the Constitution Bench
consciously did not step into territory reserved by the Constitution for
the Parliament, thereby avoiding a possible transgression of law. This
Court, in Anoop Baranwal (supra) and in other significant judicial
pronouncements, has been more than cautious of the judicial
constraints within which it operates. This judicial restraint stands
amplified when it comes to matters of executive and legislative balance,
particularly in cases of elections. The last and perhaps the only time this
Court had grappled with a topic as sensitive as elections, it caused —
unknowingly — an avalanche called the National Emergency. That the
Constitution Bench while deciding Anoop Baranwal (supra) had
trodden the path with extreme caution, bears testimony to the
apprehension.
57. While making the arrangement purely transient and requiring the
Parliament to frame a law on the lines of Article 324, the Constitution
Bench provided the rationale for the course it chose to adopt. It
acknowledged that independence of the ECI was part of the basic
structure and, hence, the need for an arrangement arose to fill up the
vacuum caused by absence of law. Thus, instead of a constitutional
norm, the Court provided an interim arrangement.
58. Nudged by the decision of this Court, the Parliament activated itself and
enacted the 2023 Act. According to the challengers, the new enactment,
which has been the immediate legislative counter response to Anoop
Baranwal (supra), has ensured that the check is removed and the
executive dominance restored and maintained.
59. As it stands today, the 2023 Act is within the constitutional text and
cannot be challenged on the ground of legislative incompetence.
Indeed, it is not the case of the challengers either that the 2023 Act
suffers from legislative incompetence. However, the 2023 Act is
challenged in a few of the petitions on the ground of removal of the CJI
from the body of selectors63 and in the others, it is specifically
challenged on the ground of lack of an independent selector which, it is
claimed, has the effect of breaching the independence of the ECI. They
further complain, what was abhorred by the Constitution Bench in so
many words in its decision in Anoop Baranwal (supra) has returned
as a sequel with the 2023 Act where the political executive is
empowered by the Parliament to call the shots.
60. The argument of the challengers has been that the 2023 Act dilutes the
independence of the ECI and thereby violates the basic structure
doctrine. Therefore, in the light thereof, the question of constitutional
validity of Section 7 of the 2023 Act appears at the forefront, which is
to be tested from the angle of the basic structure doctrine as well as on
the anvil of Articles 14 and 324 and this ought to arise at the time the
2023 Act is examined on its merits, and not at this juncture.
61. Reading Anoop Baranwal (supra), it does appear to have been the
concern of the Constitution Bench that a vacuum had existed for seven
63 W.P. (C) No. 11 of 2024 and W.P. (C) No. 13 of 2024
decades resulting in a constitutional failure on the part of the
Parliament, which was sought to be constitutionally remedied by this
Court, as was the case in Vishaka (supra) and Prakash Singh (supra).
There can be no doubt that the guidelines set by the Constitution Bench
in Anoop Baranwal (supra) were to remain in force till the enactment
of a law by the Parliament under Article 324; once the Parliament enacts
the law, the interim directions would cease to operate. By enacting the
2023 Act, the Parliament has exercised the power the Constitution
reserved for it. A judicial interim arrangement has, thus, been replaced
by a legislative rule.
62. Learned Attorney and the learned Solicitor have painstakingly argued
that the norms set in Anoop Baranwal (supra) were not such that the
Parliament could not have legislated differently. They assert that if such
submission is not accepted, it would mean that the Court, and not the
Parliament, has the final say on policy, even though the mandate of the
Constitution is “subject to law made by Parliament”. Undoubtedly, this
argument (restricted to its point) has considerable, prima facie, merit
qua the writ petitions which claim that the CJI should have been one of
the selectors.
63. This Court’s understanding of Anoop Baranwal (supra), thus, points
to this direction: the Constitution Bench, in its decision spread in excess
of 300 paragraphs, was seeking to legitimise the pro tem arrangement
and invited the Parliament to legislate based on a reasoned blue print
which the Parliament could accept, reject or modify. The detailed
reasoning in Anoop Baranwal (supra) explains why independence
demands a neutral appointment mechanism but the very language the
Constitution Bench used makes it explicit that it was transient in nature
and not a binding norm that Parliament was constitutionally obliged to
follow. If, indeed, the Constitution Bench intended that inclusion of the
CJI in the Selection Committee were binding on the Parliament, it would
have said so but at the risk of being legislatively overruled.
64. What follows from a reading of Anoop Baranwal (supra) is that the
declaration of independence of the ECI being integral to free and fair
elections and that the process has to be independent of exclusive
executive control, is binding on all courts and, in no unclear terms,
animates how Article 324(2) is to be interpreted by the constitutional
courts. However, constitution of the pro tem committee as an interim
arrangement has to be seen as an exercise of this Court’s power under
Article 142 of the Constitution as a pro tem measure. Once the 2023
Act was enacted, the interim arrangement of including the CJI in the
process of selection of the CEC and the ECs worked itself out.
65. Thus, prima facie, the argument of the challengers that the Parliament
ignored a judicial norm it was meant to follow, may not be correct.
66. Moving ahead, with the enactment of the 2023 Act, the question now is
whether the appointment process contemplated by Sections 7, 6 and
8(2), evinces a major executive control, passes the muster of Article
14, and whether, Section 7 in particular, meets the constitutional
standard of independence required by Article 324 and the basic
structure.
67. In People’s Union for Civil Liberties (supra), while holding that a
voter has a right not to vote for any of the contesting candidates, this
Court observed that democracy and free elections are a part of the basic
structure of the Constitution and also that opinions are not divided on
free and fair elections alone guaranteeing the growth of a healthy
democracy in the country. For democracy to survive, it is fundamental
that the best available individuals should be chosen as the people’s
representatives for the proper governance of the country and the same
can be best achieved through persons of high moral and ethical values
who win the elections on a positive vote. Emphasising on a vibrant
democracy, the Court observed that the voter must be given an
opportunity to choose none of the above (NOTA) button, which would
indeed compel the political parties to nominate a sound candidate.
Accordingly, the principle of the dire need of negative voting was
emphasised. The significance of free and fair elections, and the
necessity of the electorate to have candidates of high moral and ethical
values was reasserted.
68. The challengers assert that it is vital for democracy to have persons of
high moral and ethical calibre contest the elections; however, that per
se is not enough. A free and fair election presupposes a host of prior
institutional safeguards. That onerous duty, if entrusted to the CEC and
the ECs who are not independent and neutral but owe allegiance
elsewhere, and are appointed through a process that does not assure
independence and neutrality, must fail the constitutional test.
69. On the question of independence and neutrality, this is what is
understood of what the challengers have argued. They have articulated
explicitly only so much as is prudent, leaving the rest to implicit
suggestions. The 2023 Act envisages a Selection Committee of three.
Out of the three, the Prime Minister and the Leader of Opposition walk
in as members thereof by dint of the office they hold. Had it been a
Selection Committee of two of them, a stalemate would have been
inevitable, particularly, in present times, when parliamentary sessions
facing regular disruptions remain inconclusive by reason of repeated
adjournments. The hint was to search archived records to find out when
the Parliament for the last time, without any disruption at all, conducted
meaningful sessions. In any event, in unison, it has been contended
that it is the Minister’s inclusion in the committee which is the subject
matter of serious concern and, according to the challengers, denudes
the Selection Committee of institutional neutrality. They contend, and
not without valid reason, that the Prime Minister’s nominee can never
be expected to oppose the Prime Minister and take the side of the
Leader of Opposition; and, if the said Selection Committee were to
function, the decision would invariably be 2:1, on paper, in favour of the
executive and, in practice, of whoever is the ruling party. With two
members from the executive being part of the Selection Committee, the
executive has an effective veto. That veto is what Dr. Ambedkar stood
against and disapproved in no uncertain terms albeit in course of a non-
formal address, noted above. Significantly, when queried by this Court
as to whether the Prime Minister’s nominee would take a stand against
the Prime Minister in case of a difference of opinion between the Prime
Minister and the Leader of Opposition, “probably no” was the answer of
the learned Attorney although “certainly no” is what the challengers say
would be the ultimate outcome.
70. The presence of likelihood of a ‘no’ is striking enough to colour the
perception of the Selection Committee; the probabilities and certainties
of the ‘no’ matter little. Thus, the challengers of the law contend, even
if the appointments are meritorious, the process does not pass the
perception test. The bottom line of the argument runs thus: it would
not be a fallacious metaphor if it is said that since the umpire is picked
by the captain of one side in a cricket match and his team wins, even if
the decisions taken by such umpire are correct, it has the patina of
suspicion, for, at the end of the day, the umpire has effectively been
chosen by the winning captain.
71. These are very emphatic and appealing submissions. If free and fair
elections are to be ensured, it is axiomatic that the ECI must not only
be an independent body but also be seen to act independently. Though
the 2023 Act may possibly survive the frontal challenge of not including
the CJI in the selection committee, it also has to succeed on the
perception test which this Court has repeatedly said is essential. Can it
be argued with conviction that the selection committee envisioned in
Section 7 looks as independent as the pro tem committee that Anoop
Baranwal (supra) suggested? Is the mechanism constitutionally
credible? It cannot be assumed that the incumbents appointed or to be
appointed under the 2023 Act would not be individuals of character and
integrity, or, who do not value their independence, or, that the working
of the 2023 Act would result only in a subservient CEC and ECs being
appointed; nonetheless, does the mechanism generate the same public
confidence that presence of a neutral third member would?
72. While this Court does not express any conclusive response to the
questions posed above since they deal with the legitimacy of the 2023
Act, some prima facie observations would be necessary in the present
context. There can be no gainsaying that free and fair elections, to a
large extent, depend on a truly independent ECI. It is not enough for
the ECI to be independent, it must also appear to be independent. The
Minister nominated by the Prime Minister, to function as the third
member on the Selection Committee chaired by the Prime Minister,
cannot be expected to defy his own nominator and risk his continuation
as such nominated member on the committee, for all practical purposes.
Even otherwise, the collective responsibility doctrine would preclude the
Minister to oppose his Prime Minister. As observed in Manoj Narula
(supra), the Constitution reposes faith in the Prime Minister; and the
entire nation has expectations of good governance being carried on by
the Ministers of his choice. Since it is the Council of Ministers who has
the collective responsibility to sustain the integrity and purity of the
constitutional structure, it is far-fetched to expect that a Minister, who
is part of the Council of Ministers and bound by the collective
responsibility under Article 75(3), would adopt a stand in the matter of
appointment to a sensitive constitutional office disagreeing with the
leader of the Government. In such a circumstance, the inclusion of a
Cabinet Minister in the Selection Committee fails to provide the
independent counterweight that a neutral selector could and he
(Cabinet Minister) would merely echo the voice of his leader; and,
consequently, the presence of the Leader of Opposition in the Selection
Committee becomes largely ornamental, without furthering the purpose
of his inclusion. The point urged by the challengers that since the 2023
Act vests overwhelming selection power in the executive and thereby
undermines the appearance of independence essential to Article 324
and the basic structure, prima facie, does appear to have substance.
73. Learned Solicitor stressed on the sacred constitutional trust that is
attached to the office of the Prime Minister to drive home the point that
decisions taken by the Prime Minister at the helm are not to be doubted.
74. The misfortune of the people of India is that, the lofty ideals that the
Constitution envisaged have remained largely unaccomplished owing to
a lack of intent and non-abidance with constitutional morality by the
ruling regime, past and present, resulting in substantial institutional
erosion. It is disheartening to note that year on year, instead of
promoting persons who have spotless track records and are known to
be persons of unimpeachable integrity and rectitude, the political
parties appear keen, instead, to promote individuals who have been
accused of various crimes, including even moral turpitude. That a large
number of parliamentarians, legislators and even ministers, both at the
Centre and in the States, have criminal antecedents is a fact borne out
by data in the public domain. Though one must also remain alive to the
fact that false cases are instituted in large numbers against public
figures only to malign them, yet, the figures as they are and if the same
are to be believed, it is a matter of grave concern for the nation.
75. Be that as it may, the figures are also suggestive that even the
leadership of political parties finds itself unable to rise above narrow
partisan interests and commit to cleansing public life. In such a
situation, one is forced to ask whether the constitutional trust reposed
by Dr. Ambedkar during the CA Debates and this Court in Manoj
Narula (supra) has been betrayed in practice?
76. Thus, any reference made to the constitutional trust doctrine, having
regard to the criminal background of members of the elected bodies,
must extend to the constitutional morality of the appointing process
itself.
77. Having expressed a purely prima facie view based on the detailed
analysis made above, without which no valid opinion can be rendered
as to whether these petitions should be referred, as claimed by the
defenders, it is time to deal with their objection. Mindful, as this Court
is, of what Article 145(3) of the Constitution and Order XXXVIII of the
SCR ordain, the broad question that emerges for this Court’s opinion is
rendered hereafter.
78. Amidst all the vast legislative landscape which derive their legitimacy
from the Constitution of India (being the supreme law of the nation), if
any one subject of enactment is to be bestowed with the pride of place
in our Constitutional scheme, it is undoubtedly the election laws of the
country. Articles 324 to 329 constitute a self-contained code for
superintendence, conduct and adjudications of elections, and Article
327 and 328 expressly contemplate laws made by the Parliament and
the Legislatures to give effect to that code. The Representation of the
People Act, 195164 establishes the legal framework for conducting
elections, ensuring that every citizen has a fair and equal opportunity
to exercise his right to vote and participate in the political process, and
regulates the qualifications and disqualifications of candidates,
delimiting constituencies, and overseeing the electoral machinery, while
the 2023 Act establishes the legal framework for constituting the very
machinery itself, prescribing who shall be entrusted with the conduct of
those elections. The 2023 Act and the RoP Act are not ordinary statutes;
they are laws traceable directly to Articles 324(2) and 327 and give
flesh and blood to the basic skeletal structure of democracy itself. If a
hierarchy were attempted within the corpus of statute law, laws enacted
under Part XV of the Constitution, to this Court’s mind, would rank
immediately below the Constitution, for, they are the laws that play a
64 RoP Act
significant role in reinforcing the rule of law and in upholding the
principles of justice, fairness and transparency in electoral processes,
and through which the Government constitutes itself anew at every
election.
79. The question, therefore, is not one whether the present challenge
invokes constitutional provisions of considerable significance. It
emphatically does! But, the more germane inquiry, for the extant
purpose of reference under Article 145(3), is whether the challenge
raises a substantial question of law as to the interpretation of the
Constitution which remains unsettled (emphasis added) and the
determination of which is necessary for disposal of the lis? The
constitutional character of the controversy, per se, cannot be the
determinative test. This distinction entails some consequence.
80. In Thakur Ganga Singh (supra), this Court had the occasion to explain
that a question of constitutional interpretation emanates where
competing constructions of a constitutional provision are canvassed.
Where, however, the governing principle has already been
authoritatively settled, what remains is no more than the application of
the settled principle to the facts of the case. Such application, by itself,
does not transmute the controversy into one of constitutional
interpretation. The relevant passage may be profitably extracted
hereinbelow:
7. What does interpretation of a provision mean? Interpretation is the method by which the true sense or the meaning of the word is understood. The question of interpretation can arise only if two or more possible
constructions are sought to be placed on a provision - one party suggesting one construction and the other a different one. But where the parties agree on the true interpretation of a provision or do not raise any question in respect thereof, it is not possible to hold that the case involves any question of law as to the interpretation of the Constitution. On an interpretation of Art. 14, a series of decisions of this Court evolved the doctrine of classification. As we have pointed out, at no stage of the proceedings either the correctness of the interpretation of Art. 14 or the principles governing the doctrine of classification have been questioned by either of the parties. Indeed accepting the said doctrine, the appellants contended that there was a valid classification under the rule while the respondents argued contra. The learned Additional Solicitor General contended, for the first time, before us that the appeal raised a new facet of the doctrine of equality, namely, whether an artificial person and a natural person have equal attributes within the meaning of the equality clause, and, therefore, the case involves a question of interpretation of the Constituion. This argument, if we may say so, involves the same contention in a different garb. If analysed, the argument only comes to this: as an artificial person and a natural person have different attributes, the classification made between them is valid. This argument does not suggest a new interpretation of Art. 14 of the Constitution, but only attempts to bring the rule within the doctrine of classification. We, therefore, hold that the question raised in this case does not involve any question of law as to the interpretation of the Constitution. (emphasis added)
81. This position was further illumined by a 3-Judge Bench in People’s
Union for Civil Liberties (supra) as follows:
29. In our view, this contention is totally misconceived. Article 19(1)(a) is interpreted in numerous judgments rendered by this Court. After considering various decisions and following tests laid therein, this Court in Assn. for Democratic Reforms [Ed.: See full text at 2003 Current Central Legislation, Pt. II, at p. 3] arrived at the conclusion that for survival of the democracy, right of the voter to know antecedents of a candidate would be part and parcel of his fundamental right. It would be the basis for free and fair election which is a basic structure of the Constitution. Therefore, the question relating to interpretation of Article 19(1)(a) is concluded and there is no other question which requires interpretation of the Constitution. ***
32. From the judgment rendered by this Court in Assn. for Democratic Reforms [Ed.: See full text at 2003 Current Central Legislation, Pt. II, at p. 3] it is apparent that no such contention was raised by the learned Solicitor- General, who appeared in appeal filed on behalf of the Union of India that question involved in that matter was required to be decided by a five-Judge Bench, as provided under Article 145(3) of the Constitution. The question raised before us has been finally decided and no other substantial question of law regarding the interpretation of the Constitution survives. Hence, the matter is not required to be referred to a five-Judge Bench. (emphasis added)
82. The significance of this Court’s decision in People’s Union for Civil
Liberties (supra), therefore, lies not merely in its conclusion, but in the
principle underlying it: merely invoking a constitutional provision does
not raise a substantial question of law as to interpretation of the
Constitution if the governing principle has already been settled by this
Court. Once a constitutional rule stands authoritatively declared, its
application to a new statutory or factual context may often be required;
but that alone does not furnish a valid basis for a reference to a larger
Bench.
83. This position bears of no ambiguity in Abdul Rahim Ismail C.
Rahimtola (supra). The contention before this Court in such case was
that since a constitutional question had been raised, the same had to
be referred to a Bench of not less than 5 (five) judges as stipulated in
Article 145(3). The said submission was rejected on the anvil that the
very question sought to be raised had already been settled by a 5-Judge
Bench and, hence, no substantial question as to the interpretation of
the Constitution subsisted. The Court reasoned in the following words:
6. As to the first contention it was urged that Section 3 of the Act and Rule 3 of the Rules insofar as they purported to relate to an Indian citizen were ultra vires the Constitution, as they offended against the provisions of Article 19(1)(d) and (e). Article 19(1)(d) confers the fundamental right on all Indian citizens “to move freely throughout the territory of India” and Article 19(1)(e) “to reside and settle in any part of the territory of India”. This fundamental right, however, is subject to reasonable restrictions under clause (5) of Article 19. In the case of Ebrahim Vazir Mavat v. State of Bombay [(1954) SCR 933] the majority judgment of this Court held that an Indian citizen visiting Pakistan for any purpose whatsoever and returning to India may be required to produce a permit or a passport as the case may be before he can be allowed to enter India, and this requirement may well be regarded as a proper restriction upon entry. This Court, however, held that it was quite a different matter to say that if he enters India without a
permit he may on conviction for such offence be ordered to be removed from India. It was the order directing his removal from India which was held by this Court to be tantamount to taking away his fundamental right guaranteed under Article 19(1)(e), “to reside and settle in any part of the territory of India”. It is clear, therefore, that so far as this Court is concerned it has already decided that to require an Indian citizen to produce a passport before he can be allowed to enter India may be regarded as a proper restriction upon entering India. This decision is binding on us and we must follow the decision of this Court in the case referred to. It was, however, urged that as a constitutional question has been raised this matter cannot be decided by Judges less than five in number. Therefore, the case should be referred to what is described as the Constitution Bench. Article 145(3) of the Constitution states that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under Article 143 shall be five. It is clear that no substantial question of law as to the interpretation of the Constitution arises in the present case as the very question raised has been decided by a Bench of this Court consisting of five Judges. As the question raised before us has been already decided by this Court it cannot be said that any substantial question of law arises regarding the interpretation of the Constitution. (emphasis added)
84. A similar sentiment was echoed by this Court, more recently, in
Shrimanth Balasaheb Patil (supra) as follows:
157. There is no doubt that the requirements under Article 145(3) of the Constitution have never been dealt with extensively and, more often than not, have received mere lip service, wherein this Court has found existence of case laws which have already dealt with the proposition involved, and have rejected such references. Normatively, this trend requires consideration in appropriate cases, to ensure that unmeritorious references do not unnecessarily consume precious judicial time in the Supreme Court.
158. In any case, we feel that there is a requirement to provide a preliminary analysis with respect to the interpretation of this provision. In this context, we need to keep in mind two important phrases occurring in Article 145(3) of the Constitution, which are, “substantial question of law” and “interpretation of the Constitution”. By reading the aforesaid provision, two conditions can be culled out before a reference is made: (i) The Court is satisfied that the case involves a substantial question of law as to the interpretation of this Constitution; (ii) The determination of which is necessary for the disposal of the case.
159. We may state that we are not persuaded for referring the present case to a larger Bench as the mandate of the aforesaid Article is that this Court needs to be satisfied as to the existence of a substantial question of law on the constitutional interpretation. However, this does not mean that every case of constitutional interpretation should be compulsorily referred to a Constitutional Bench.
160. Any question of law of general importance arising incidentally, or any ancillary question of law having no significance to the final outcome, cannot be considered as a substantial question of law. The existence of substantial question of law does not weigh on the stakes involved in the case, rather, it depends on the impact the question of law will have on the final determination. If the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as “substantial questions of law”. In any case, no substantial question of law exists in the present matter, which needs reference to a larger Bench. The cardinal need is to achieve a judicial balance between the crucial obligation to render justice and the compelling necessity of avoiding prolongation of any lis. (emphasis added)
85. Having surveyed the precedents, germane for the present remit of
consideration, solely as to whether the present matter warrants a
reference to a larger Bench, the submission seeking a reference merely
because the constitutional principles invoked by the challengers are of
foundational significance, does not, carry the matter any further. The
Court is required to identify the precise proposition of constitutional law
which remains open for determination and which, despite the extant
body of binding precedents, calls for reconsideration by a larger Bench.
86. The present case involves propositions relating to the constitutional
imperative of free and fair elections and the necessity of the institutional
independence of the ECI. The constitutional conspectus of Article 324
cannot be examined in silos, de hors the binding principles enunciated
in the precedents. The 2023 Act undoubtedly adds a new element to
the canvas that must be tested against the settled principles occupying
the field thus far. Such an exercise, however, is materially different from
saying that the constitutional principles themselves remain unsettled.
The former is an application of settled constitutional standards to a
subsequent legislative measure; the latter alone would warrant a
reference to a larger Bench. The two ought not to be conflated.
87. It is against this backdrop that the prayer for reference must be
examined. The issue does not hinge upon whether the independence of
the ECI is a part of basic structure or not. It plainly is! But does the
existing jurisprudence leave amorphous a substantial question
concerning the constitutional standard governing such independence?
If the answer to the aforesaid is in the negative, the lis must be
answered within the milieu of settled law, including by examining
whether the statutory scheme introduced by the 2023 Act complies with
the constitutional requirements as dictated by this Court.
88. In the further considered opinion of this Court, the justification for a
reference cannot be sustained merely by repackaging an existing
constitutional principle in a seemingly new factual or legislative setting.
Hence, this Court holds as under:
A. The prima facie opinion expressed hereinabove is confined to
consideration of the prayer for a reference and does not entail any
expression qua the merits of the final challenge laid in the petitions
before this Court.
B. Precedents having laid down in unmistakable terms that free and fair
elections are a basic feature of the Constitution and that the ECI
should be insulated from exclusive executive control in relation to
appointments of the CEC and the ECs, what remains is no more than
the application of the settled principles of law to the facts of the case
and a decision on the challenge, as laid.
C. Thus, neither any constitutional bar nor a precedent precludes
hearing of these petitions by the present Bench.
D. Accordingly, the defenders’ prayer for a reference to a larger Bench
is rejected for the foregoing reasons.
89. The writ petitions and the intervention applications may, therefore, be
placed for hearing on a date to be notified later, subject to obtaining an
order in that behalf from the CJI.
………..…………………J. (DIPANKAR DATTA)
NEW DELHI; SEPTEMBER 23, 2026.
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 14 OF 2024
DR. JAYA THAKUR & ORS. ...PETITIONERS
VERSUS UNION OF INDIA & ANR. …RESPONDENT(S)
WITH
WRIT PETITION (CIVIL) NO. 13 OF 2024
GOPAL SINGH ...PETITIONER
VERSUS UNION OF INDIA & ANR. …RESPONDENT(S)
WITH
WRIT PETITION (CIVIL) NO. 11 OF 2024
NAMAN SHRESTHA & ANR. ...PETITIONERS
VERSUS UNION OF INDIA …RESPONDENT
W.P. (C) No. 14 of 2024 & Ors. Page 1 of 12
WITH
WRIT PETITION (CIVIL) NO. 87 OF 2024
ASSOCIATION FOR DEMOCRATIC REFORMS ...PETITIONER
VERSUS
UNION OF INDIA …RESPONDENT
WITH
WRIT PETITION (CIVIL) NO. 191 OF 2024
PEOPLES UNION FOR CIVIL LIBERTIES & ANR. ...PETITIONERS
VERSUS
UNION OF INDIA …RESPONDENT
WITH
WRIT PETITION (CIVIL) NO. 272 OF 2024
LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA ...PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENT(S)
W.P. (C) No. 14 of 2024 & Ors. Page 2 of 12
O PI NI O N
SATISH CHANDRA SHARMA, J.
1. I have read the judgment proposed to be delivered by my learned brother, Justice Dipankar Datta, over and over again. With the deepest of respect that I have for His Lordship and with utmost humility, I am unable to persuade myself to accept all the observations made or the line of reasoning adopted by His Lordship to hold that the issues arising in this batch of writ petitions and the connected intervention applications do not deserve consideration by a Constitution Bench. Thus, I propose to write a brief opinion in support of my views.
2. The facts giving rise to the writ petitions, the defence taken by the respondents, the arguments of the parties and the issues arising for decision have been noted in detail by His Lordship; hence, I need not repeat the same.
3. The petitioners have relied on the decisions of this Court in State of J & K v. Thakur Ganga Singh1; Abdul Rahim Ismail C. Rahimtoola v. State of Bombay2; People’s Union for Civil Liberties v. Union of India3, and Shrimanth Balasaheb Patil v.
Footnotes
W.P. (C) No. 14 of 2024 & Ors. Page 3 of 12
Karnataka Legislative Assembly4 to urge that a reference need not be warranted if the issue for decision has already been resolved. Next, they have relied on the decision in Madras Bar Association v. Union of India5 to contend that no request for a reference belatedly made should be accepted. Further, the decisions in Shreya Singhal v. Union of India6; Nikesh Tarachand Shah v. Union of India7; NALSA v. Union of India8; Anuj Garg v. Hotel Association of India9; Subramanian Swamy v. Union of India10; State of Maharashtra Vs. Indian Hotel & Restaurants Assn.11; Lily Thomas v. Union of India12; D.K. Basu v. State of West Bengal13; Nandini Sundar v. State of Chhattisgarh14; Independent Thought v. Union of India15; Pattali Makkal Katchi v. A. Mayilerumperumal16 and Union of India v. Rajendera N. Shah17 were relied on to contend that constitutional challenges have been decided by smaller Benches and the mere fact that constitutional validity is in issue does not warrant a reference to a Constitution Bench. Finally, reliance
4 (2020) 2 SCC 595 5 (2026) 2 SCC 1 6 (2015) 5 SCC 1 7 (2018) 11 SCC 1 8 (2014) 5 SCC 438 9 (2008) 3 SCC 1 10 (2016) 7 SCC 221 11 (2013) 8 SCC 519 12 (2013) 7 SCC 653 13 (1997) 1 SCC 416 14 (2011) 7 SCC 547 15 (2017) 10 SCC 800 16 (2023) 7 SCC 481 17 (2022) 19 SCC 520
W.P. (C) No. 14 of 2024 & Ors. Page 4 of 12
was placed on Rao Shiva Bahadur Singh v. State of Vindhya Pradesh18, which I propose to deal at a later stage.
4. The respondents have referred to Article 145(3) of the Constitution of India, 1950 and Order 38 of the Supreme Court Rules, 2013 to support their contention that challenge to the provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (hereafter the said Act) being a matter of constitutional significance and raising substantial questions of law as to interpretation of the Constitution, these matters must be heard by a Constitution Bench of not less than 5 Judges.
5. In my opinion, the arguments advanced on behalf of the respondents by Mr. Venkataramani, learned Attorney General for India and Mr. Mehta, learned Solicitor General are well-founded. The said Act has been recently enacted pursuant to the decision of the Constitution Bench in Anoop Baranwal v. Union of India19. There is no authoritative decision of this Court till date pronouncing on the constitutional validity of the said Act. A judicial decision in light of what the Constitution provides has to be given by this Court while it is seized of the issue of vires of Section 7 of the said Act and its other provisions. The decision
18 (1955) 1 SCC 539 19 (2023) 6 SCC 161
W.P. (C) No. 14 of 2024 & Ors. Page 5 of 12
on these writ petitions would be the first of its kind and it is all the more necessary that a reference is made.
6. In my opinion, the learned Solicitor General essentially advanced his constitutional submissions in support of his prayer for reference of the matter to a larger Bench of five Judges. While addressing the said prayer for reference to a Constitution Bench, he placed reliance upon the doctrine of separation of powers amongst the three organs of the State under the Constitution.
7. In this context, the learned Solicitor General relied upon the judgment of a Constitution Bench of this Hon’ble Court in the NJAC case, wherein the Court had held that the presence of even the Law Minister in the Collegium for the selection of Judges of the High Courts and the Supreme Court was violative of the doctrine of separation of powers. Building upon the aforesaid constitutional principle, the submission of the learned Solicitor General was that a corresponding degree of constitutional independence must also be recognized for the Executive as well as the Legislature. He submitted that the Committee constituted under the Rules framed under Article 324 deserves to be declared legal though dominated by the members of the executive. The submission was not as a criticism of the Collegium system or regarding the role of the executive in the appointment of Judges. In my opinion, it was a submission to the
W.P. (C) No. 14 of 2024 & Ors. Page 6 of 12
effect that if the Constitution Bench has held that the presence of outsiders in the collegium as violative of doctrine of separation of powers, a similar independence should be read in the executive also and the rules framed under Article 324 be not declared void on the ground either that it does not have any outsider in the Committee of selection or there is pre-dominance of only executive in the committee of selection.
8. In my perspective, it was neither a criticism of the Collegium system nor initiating any debate regarding the manner in which the system of selection has worked. The submission was confined to the aforesaid constitutional principle and its application to the issue arising in the present case. In my humble opinion, as there is no authoritative decision of this Court till date pronouncing upon the constitutional validity of the said Act, the matter must be heard by a Constitution Bench of not less than five Judges.
9. Let me now briefly deal with the contentions of the petitioners urging us not to refer the issue(s) to a larger Bench.
10. The petitioners’ primary contention was that the Constitution Bench in Anoop Baranwal (supra) not only addressed the constitutional vacuum under Article 324(2) but also held that the Election Commission of India must be insulated from exclusive executive control in appointments. The present
W.P. (C) No. 14 of 2024 & Ors. Page 7 of 12
case only requires application of that settled principle to the said Act.
11. Also, it was contended that even independent of Anoop Baranwal (supra), placing the appointment of the Election Commissioners substantially under executive control compromises the constitutional balance, particularly because the executive itself is a participant in the process.
12. Having read the decision in Anoop Baranwal (supra), my understanding is that it was dealing with the constitutional vacuum and noticing that no law had been enacted and while leaving it to the Parliament to enact the law, the Constitution Bench proposed an ad hoc arrangement whereby the Hon’ble the Prime Minister, the Hon’ble Chief Justice and the Leader of the Opposition were to form an interim committee to select the Election Commissioners. No doubt, to the extent law has been declared under Article 141 is to be applied but whether or not Parliament was justified in not including a neutral selector in the selection committee is an important question arising for the first time before this Court. Since, it is a substantial question of law as to interpretation of the Constitution, which has not been dealt with in any precedent, the plain language of Article 145(3) read with Order 38 of the Supreme Court Rules does not leave any room for a decision on such question finally by the present combination.
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Source: Supreme Court of India (www.sci.gov.in). Judgment text as published on the Court's website.