Divided over the question of referring petitions challenging the 2023 law on the appointment of the Chief Election Commissioner and Election Commissioners to a five-judge Constitution Bench, two judges of the Supreme Court Wednesday left the decision of constituting a larger bench to the Chief Justice of India.Disagreeing with Justice Satish Chandra Sharma on referring the matter to a five-judge bench, Justice Dipankar Datta underlined that “it is not enough for the ECI to be independent, it must also appear to be independent”.He noted that the role of the Leader of Opposition in the three-member panel for the selection of the CEC and ECs “becomes largely ornamental, without furthering the purpose of his inclusion”.The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which was brought to nullify the effect of a 2023 Supreme Court judgement by a five-judge bench, envisaged a three-member selection committee comprising the Prime Minister, Leader of Opposition and a Union Cabinet Minister.Also Read | 14 times in 10 months, two Election Commissioners objected on record to poll panel stepsPetitioners challenging the law argued that this violated the spirit of the Supreme Court ruling.In the 1-1 decision Wednesday, Justice Datta said, “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.”The “inclusion of a Cabinet Minister in the Selection Committee,” he said, “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.”Justice Datta rejected the prayer for reference, concluding that the petitions do not raise any fresh substantial question of law that requires the interpretation of the Constitution but only called for application of already settled principles.Justice Sharma disagreed and said “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”.Story continues below this adAlso Read | ‘Illegal, unauthorised’: Election Commissioners objected to Form 6 changeIn the event of a split decision, the matter is placed before the CJI to set up an appropriate larger bench.The bench also took note of the concern expressed by the petitioners on the time that could be taken by the Court to decide the reference. While the original plea seeking an independent process to appoint Election Commissioners was filed in 2015, it was referred to a larger bench in 2018. The Supreme Court verdict then came in 2023, following which a new law was enacted.During earlier hearings, the Centre, represented by the Attorney General R Venkataramani and Solicitor General Tushar Mehta, while backing the law, had urged the bench to refer it to a larger 5-judge bench, saying it raised substantial questions of law which required the interpretation of the Constitution.Also Read | Supreme Court split verdict on CEC appointment law reference plea, matter goes to CJIMehta had said that “the sacred constitutional trust that is attached to the office of the Prime Minister” means that “decisions taken by the Prime Minister at the helm are not to be doubted”.Story continues below this adJustice Datta said, “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.”Referring to the 2014 Supreme Court decision by a 5-judge bench in Manoj Narula vs Union of India, he recalled the court had said therein that “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.”Also Read | Kerala to Kashmir to Ayodhya, Gyanesh Kumar’s journey to top of poll panel“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,” he said.Justice Datta said “the point urged by the challengers (petitioners) 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.”Story continues below this adIn the course of the hearing too, Justice Datta had raised doubts on the independence of the committee. Responding to this, Mehta had said that there is a sacred constitutional trust that is attached to the office of the Prime Minister and that it would be wrong to assume that the Prime Minister and the Minister would not act “in the interest of democracy” because they have a “numerical majority” in the selection procedure.Article 324 of the Constitution lays down that 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.”Hearing petitions in March 2023, which said no such law had been made and sought a Collegium-style appointment system for appointment of the CEC and ECs, a five-judge bench had, in the Anoop Baranwal vs Union of India case, ruled that until such time the law is made, they shall be appointed on the advice of a committee comprising the Prime Minister and the Leader of Opposition in Lok Sabha.The bench also said that if there is no such leader, the leader of the largest party in the Opposition in Lok Sabha and the Chief Justice of India will do so.Story continues below this adParliament then brought in the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which, however, left out the CJI.A clutch of petitions challenging this were filed, including by the Association for Democratic Reforms and Lok Prahari, civil society groups that have previously filed several interventions on electoral reforms before the Supreme Court.Allowing the prayer for reference, Justice Sharma said “the submission that reference to a Constitution Bench would permit the respondents to launch a challenge to the decision in Anoop Baranwal… and reopen issues settled by it, short-circuiting the reference procedure and, thus, misusing the provisions of Article 145(3) of the Constitution, proceeds on a misapprehension.”“Fair and free elections being a part of the basic structure has been acknowledged in the precedents relied on and no Court can or would, possibly, doubt it now. But whether the said Act fails the test of free and fair elections has to be independently examined,” he said.