Supreme Court Splits on Referring EC Appointment Law; Justice Datta Invokes ‘Perception Test’, Defends Collegium

The news

New Delhi, September 23. A two-judge Bench of Justices Dipankar Datta and Satish Chandra Sharma split 1-1 on the Centre’s plea to refer petitions against the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a Constitution Bench — a bench of at least five judges that settles substantial questions of constitutional interpretation. When two judges disagree there is no majority, so both agreed the papers go to Chief Justice of India Surya Kant to constitute a bench to decide the validity of Section 7 and other provisions, The Economic Times reports, since routing it first through a three-judge bench would be of “little worth”, as The Indian Express quotes the order. The Act replaced the CJI, whom the five-judge Anoop Baranwal judgment of March 2023 had placed on an interim selection panel, with a Union Cabinet Minister nominated by the Prime Minister, alongside the PM and the Leader of Opposition. Justice Datta held that no reference was needed because Anoop Baranwal had settled that appointments cannot remain under “exclusive executive control”. Prima facie, he said, a Minister “cannot be expected to defy his own nominator” given collective responsibility under Article 75(3), leaving the Leader of Opposition’s role “largely ornamental”; “it is not enough for the ECI to be independent, it must also appear to be independent”. An umpire picked by one captain carries “the patina of suspicion” even when correct, he said, and the arrangement fails the “perception test”. Justice Sharma held that since no authoritative ruling on the Act’s validity exists, Article 145(3) requires at least five judges. Both flagged delay — the original plea was filed in 2015, referred in 2018 and decided in 2023 — and urged a permanent five-judge bench: “Self-introspection indeed is required.” In the 70-page verdict, Justice Datta called the Solicitor General’s argument that courts cannot demand an outsider on the EC panel when the Collegium has none “disingenuous, evasive and disquieting”, said “judges appoint judges” is “a myth”, criticised the Centre’s “selective” clearance and “piecemeal approvals” of Collegium recommendations, and said the Collegium, despite “opacity and imperfections”, remains “the most viable option”. Justice Sharma read the Solicitor General’s point as one about separation of powers, not an attack on the Collegium. Syllabus: GS2, constitutional bodies, the judiciary and separation of powers.

Static syllabus linkage

1. Article 324(2) left appointments to Parliament, and Anoop Baranwal filled the silence. Article 324(2) provides that the CEC and other Election Commissioners shall be appointed by the President subject to the provisions of any law made by Parliament. For over seven decades no such law existed, and appointments were made on the advice of the Union Council of Ministers. In Anoop Baranwal v Union of India (March 2023), a five-judge Constitution Bench held that, until Parliament legislated, appointments should be made on the advice of a committee of the Prime Minister, the Leader of Opposition in the Lok Sabha (or the leader of the largest opposition party) and the CJI. Independence in the appointment and functioning of the Commission is, as Justice Datta put it on Wednesday, ‘well-settled’ law and part of the Basic Structure through free and fair elections. Earlier, the Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission’s 255th Report (2015) had also recommended a non-executive element in the selection.
2. The 2023 Act gives the executive two of three votes on the Selection Committee. Under Section 7 of the 2023 Act, the President appoints the CEC and Election Commissioners on the recommendation of a Selection Committee of the Prime Minister as chairperson, the Leader of Opposition in the Lok Sabha (or the leader of the single largest opposition party) and a Union Cabinet Minister nominated by the Prime Minister. Per PRS, a Search Committee prepares a panel of five names, but the Selection Committee may consider persons outside it, and its recommendation is not invalid merely because of a vacancy in the Committee. Appointees must hold or have held a post equivalent to Secretary to the Government of India, and serve six years or until 65, whichever is earlier. The same formula of PM, Leader of Opposition and a PM-nominated Cabinet Minister selects the Chief Information Commissioner under Section 12(3) of the Right to Information Act, 2005, while the CBI Director is chosen by the PM, the Leader of Opposition and the CJI or a judge he nominates.
3. Article 145(3) reserves unsettled constitutional questions for at least five judges. Article 145(3) fixes five as the minimum number of judges to decide any case involving a substantial question of law as to the interpretation of the Constitution, or to hear a presidential reference under Article 143. A case does not qualify merely because it involves the Constitution; the question must be unsettled, one the Court has never authoritatively answered, and that is exactly where Justices Datta and Sharma differed. When a two-judge bench is divided, the matter goes to the CJI, who as master of the roster decides whether and how to constitute a larger bench; a split does not by itself compel a Constitution Bench. The Karnataka hijab case, split in October 2022, and a split this year on Section 17A of the Prevention of Corruption Act, 1988 are recent examples, and the hijab reference remains pending, The Indian Express notes.
4. The Collegium is a judge-made system the Court has defended against Parliament. Articles 124(2) and 217(1) require the President to appoint Supreme Court and High Court judges after ‘consultation’ with the CJI and other judges. In S P Gupta (1981), the First Judges case, the Court held that consultation did not mean concurrence, giving the executive primacy; the Second Judges case (Supreme Court Advocates-on-Record Association, 1993) reversed this and created the Collegium, and the Third Judges case (1998), a presidential reference under Article 143, enlarged it to the CJI and the four senior-most judges for Supreme Court appointments. The 99th Amendment Act, 2014 created a National Judicial Appointments Commission of the CJI, two senior judges, the Law Minister and two eminent persons, which a five-judge bench struck down by 4:1 in October 2015 as violating judicial independence. Appointments still pass through executive processing, intelligence inputs and the President’s warrant — the stages Justice Datta relied on to call ‘judges appoint judges’ a myth.

Why UPSC loves this

1. Two syllabus lines meet in one judgment. GS2 lists ‘appointment to various constitutional posts’, ‘separation of powers between various organs’ and the ‘structure, organisation and functioning of the Judiciary’. Mains has asked about judicial appointments and the NJAC, and separately about the Election Commission’s independence; this judgment lets a candidate answer both with one example of how appointment design shapes institutional credibility.
2. Prelims loves selection committees and procedural articles. Composition of selection panels is a staple — who selects the CIC, the CVC, the Lokpal, the NHRC chairperson and now the CEC. Article 145(3), presidential references under Article 143 and the procedure after a split verdict are the kind of provisions UPSC tests through statement-based questions.
3. The ‘perception test’ is a GS4 idea as much as a legal one. Justice Datta’s line restates the maxim that justice must not only be done but be seen to be done. Ethics papers test exactly this: public trust as part of legitimacy, and the appearance of bias.

Analysis

1. The perception test is Justice Datta’s strongest argument and, in law, his most contestable one. Courts routinely demand the appearance of independence from judges and tribunals, and the standard fits an umpire of elections. But a statute is tested against constitutional text and the Basic Structure, and Article 324(2) expressly lets Parliament legislate on appointments; Anoop Baranwal itself said its panel would operate only until Parliament made a law. The government will argue that Parliament did exactly what the Court invited, using a formula already accepted for the Chief Information Commissioner. The petitioners reply that Baranwal located independence in the Basic Structure, so the law must satisfy the principle, not merely fill the gap. Whether the appearance of executive dominance, without proof of actual partiality, can invalidate a law is precisely the unsettled question — which is why the reference matters.
2. Justice Sharma has the better procedural case, Justice Datta the better institutional one. Article 145(3) is mandatory in its wording, and a two-judge bench striking down a central law on Basic Structure grounds would invite the objection that it lacked the numbers to do so. The Act has never been examined, and whether Parliament may exclude a neutral selector is, as Justice Sharma says, a question arising for the first time. Justice Datta’s concern is cost: Anoop Baranwal took eight years from petition to verdict, and the hijab reference has waited four. A reference that takes as long would outlast the six-year terms of Commissioners appointed under the law. Both judges converge on the real reform, a standing Constitution Bench, and the CJI can honour both views by constituting a bench quickly and fixing a hearing schedule.
3. Delay is itself a decision, and today it has a face. While the challenge waits, the Act operates, and the Commission chosen under it is at the centre of the dissent crisis described in the previous card. The Hindu’s editorial draws the link explicitly: it was this panel that chose Mr. Kumar as CEC. No court has found any appointment unlawful, and the Act is presumed valid until struck down. But when a selection design fails the perception test in a judge’s prima facie view, and the person selected is simultaneously accused of bypassing his colleagues, each problem magnifies the other. The Court cannot cure the first quickly, but a prompt Constitution Bench would stop the uncertainty from compounding.
4. The Collegium detour exposes a symmetry both branches would rather avoid. The Solicitor General’s argument was rhetorical but pointed: if outsiders are unnecessary in the Collegium, why insist on one for the Election Commission? Justice Datta’s reply — that the executive already holds the last word through consultation, intelligence inputs, processing and the President’s imprimatur, and uses it selectively, letting recommended names ‘gather dust for years’, as The Hindu reports him saying — is a strong factual answer. Yet the executive’s power is essentially a veto by delay, initiation lies wholly with judges, and the Collegium publishes no reasons. Both appointment systems share one flaw: a dominant actor and an opaque process. Justice Datta’s own phrase points to the cure: not transferring primacy from one organ to another, but ‘calibrated checks and balances’.
5. There are ways to make the panel credible short of putting the CJI on it. A judge on an executive selection panel raises its own separation-of-powers problem, since the Court may later hear challenges to appointments its head helped make. Alternatives exist: requiring the Leader of Opposition’s concurrence, or written reasons whenever he is overruled; a genuinely independent search committee whose shortlist binds the panel; or a wider panel including presiding officers of Parliament, as the Second Administrative Reforms Commission suggested. The design goal is simple — no single side should be able to appoint alone. Parliament could adopt such a change voluntarily and make the Constitution Bench’s task easier, which would be the most credible answer to the perception test.

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