Election Commissioner appointment case: SC judges split, matter goes to CJI

A two-judge bench of the Supreme Court has given a split verdict on a petition seeking to include the Chief Justice of India (CJI) in the process of appointing Election Commissioners. The bench, comprising Justice Dipankar Datta and Justice Satish Chandra Sharma, held differing views on the matter.

Both judges requested the Chief Justice to consider setting up a permanent five-judge constitution bench to examine the constitutional questions raised in the case. The central government had earlier also sought that the matter be referred to a five-judge constitution bench.

Justice Dipankar Datta declined to refer the matter directly to a five-judge constitution bench. However, he was of the view that the case should be sent to a three-judge bench for the next hearing.

Justice Datta also commented on the argument made regarding the collegium system for the appointment of judges. He said it was a misconception being spread that only judges appoint judges. Justice Datta noted that the appointment process involves consultation with the central and state governments, and reports are also taken from intelligence agencies. He said it was not right to question the entire system over one or two appointments.

The petitioners had argued that a fair selection process for Election Commissioners was necessary to maintain the impartiality of the Election Commission. They said that if the selection committee includes the Prime Minister along with his nominated representative, there is a possibility of the selection process being skewed in favour of the government. The petitioners also said that the role of the Leader of the Opposition in the three-member committee could end up being merely formal. Justice Datta said this argument had merit.

Justice Satish Chandra Sharma, however, disagreed with Justice Datta's view while reading out his order. Justice Sharma noted that earlier, when there was no clear system for appointing Election Commissioners, the court had set up a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India to fill that gap. But he said the situation has since changed, as Parliament has now enacted a law on the matter. Justice Sharma was therefore of the view that the case should be placed before the Chief Justice of India, who should constitute a five-judge constitution bench.

Despite the disagreement, Justice Datta also agreed that it would be appropriate to send the case to the Chief Justice of India for the next hearing. The petitioners had expressed concern that cases referred to constitution benches often remain pending for years. On this, Justice Datta said he hoped the matter would be heard soon.