The Supreme Court has issued a divided ruling on the constitutional validity of the 2023 statute that removes the Chief Justice of India from the committee responsible for appointing the Chief Election Commissioner and Election Commissioners, thereby prompting major concerns about judicial supervision in the process of electoral appointments.
Highlighting the "inordinate delay" in deciding matters referred to larger benches, the Supreme Court on Wednesday urged the Chief Justice of India to consider setting up a permanent five-judge bench to handle cases involving constitutional questions.
A bench comprising Justices Dipankar Datta and Satish Chandra Sharma described the delay as a matter of "grave concern" and observed that self-introspection was necessary, noting that prolonged pendency of references does not reflect well on the institution.
The observations came after the two judges delivered divergent views on whether a set of petitions contesting the legality of a 2023 law—removing the Chief Justice of India from the committee that appoints the Chief Election Commissioner and Election Commissioners—should be sent to a larger bench.
The bench observed that, judging by available statistics, it is impossible to predict with any reasonable certainty when long-pending references will be resolved.
It added that self-introspection is truly necessary and, therefore, used this occasion to urge the CJI to consider setting up a permanent five-judge bench dedicated to adjudicating purely constitutional questions.
This is not a new assertion on our part. Responsible citizens of the country have repeatedly expressed this view, and we merely affirm their stance,
It was noted that addressing constitutional matters is the chief responsibility of judges in the highest court, and this must continue to be their foremost priority.
The prolonged pendency of references, extending anywhere from five to twenty years or more, does not reflect favourably on the institution. The time has come for the institution to tackle this problem with the urgency and promptness it warrants," the bench observed.
Both judges noted that they were members of a nine-judge Constitution bench that had recently delivered its judgment on the contentious question of defining the term "industry" under the Industrial Disputes Act, 1947.
The bench noted that it took several years for the reference issued by a seven-judge bench in that case to reach the nine-judge bench.
While dealing with the pleas challenging the validity of the 2023 law that excludes the CJI from the panel for selecting the CEC and ECs, Justice Datta refused to accept the Centre's submission that the petitions raise questions of constitutional importance and should be referred to a five-judge Constitution bench.
Justice Sharma, however, disagreed with the views of Justice Datta.
The bench said the matter be placed before the CJI on the administrative side for constitution of a bench of appropriate strength for an effective and authoritative adjudication.
The bench was considering petitions contesting the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which removes the Chief Justice of India from the selection committee responsible for appointing election commissioners and the chief election commissioner.
On March 2, 2023, in a landmark judgment intended to shield the appointment process of the CEC and ECs from executive influence, a five-judge Constitution bench held that these appointments must be made by the President based on the recommendations of a committee consisting of the prime minister, the Leader of the Opposition in the Lok Sabha, and the CJI.
